No. 244 Special Transfer Docket, appeal from the judgment of sentence of the court of common pleas of philadelphia county, trial division, criminal section, february term, 1977, no. 1496 (voluntary manslaughter, term of five to ten years imprisonment>.
Holly Maguigan, Philadelphia, for appellant.
Neil Kitrosser, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, Manderino and Cirillo, JJ.*fn*
[ 270 Pa. Super. Page 389]
Appellant, Wilbur Savage, was convicted in a jury trial of voluntary manslaughter. Post-trial motions were waived, and appellant was sentenced to five to ten years imprisonment. This is a direct appeal to the Supreme Court from judgment of sentence.
The facts may be briefly summarized as follows. Shortly after midnight on February 3, 1977, appellant was involved in an altercation inside a bar which spilled out into the street. There, appellant drew a knife, and in the course of the struggle, stabbed the decedent. Appellant alleged self-defense.
[ 270 Pa. Super. Page 390]
Prior to trial, appellant underwent six psychiatric examinations. Trial was originally scheduled for February 22, 1978; however, appellant refused to cooperate with his counsel. Therefore, the court declared a mistrial. A court-appointed psychiatrist, Dr. Schwartzman, D.O., examined appellant on the same day, and concluded he was a paranoid schizophrenic, incompetent to stand trial unless under medication. Pursuant to this advice, the court ordered that appellant be administered the necessary medication, an antipsychotic drug named Prolixin, up to and during trial.
The court tentatively rescheduled trial for February 27, 1978, pending the report of Dr. Saul who was appointed by the court to examine appellant. Dr. Saul telephoned the trial judge and stated that the appellant was competent to stand trial. Based on this oral report, the court determined appellant competent to stand trial. The report of February 27, 1978, was submitted for the record on February 28, 1978, the second day of the trial.
Appellant's counsel has filed an affidavit as to after-discovered evidence, and seeks a remand. This evidence indicates that appellant was allergic to the court-ordered medication, and that this may have affected his mental competency at trial. Pennsylvania Rule of Criminal Procedure 1123(d) authorizes a motion for a new trial on the ground of after-discovered evidence, and if an appeal is pending, as in this case, such motion may be granted only upon remand of the case.
The crucial issue on this appeal is whether the appellant's competency to stand trial on February 27, 1978, was ever properly determined. The Supreme Court has stressed the fact that competency is a fundamental due process requirement. In Commonwealth v. Bruno, 435 Pa. 200, 205 n.1, 255 A.2d 519, 522 n.1 (1969), it was noted that ". . . the mental competence of an accused must be regarded as an absolute and basic condition of a fair trial." Also, in Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 ...