No. 125 Special Transfer Docket, No. 350 Special Transfer Docket, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Pennsylvania, Criminal Trial Division, September Term, 1976, No. 599
Mark E. Kogan, Philadelphia, for appellant.
Sandy L. Byrd, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wieand, Nix and Wekselman, JJ.*fn*
[ 271 Pa. Super. Page 406]
Joseph Kerrigan was arrested in September, 1976, and charged with the strangulation death of Laurie Glassmyer, a twenty-one year old student, and with possession of an instrument of crime. A psychiatric report prepared on November 4, 1976, disclosed that appellant was suffering from chronic paranoid schizophrenia and that he was incompetent to stand trial. He was committed to the Philadelphia State Hospital at Byberry. Subsequent examinations on December 7, 1976, and January 31, 1977, confirmed that he was incompetent for purposes of trial, and criminal detention was continued.
Kerrigan's counsel then filed a petition to dismiss criminal charges which he alleged appellant was entitled to receive under Section 403(d) of the Mental Health Procedures Act of July 9, 1976, P.L. 817, No. 143, 50 P.S. § 7403(d). A hearing thereon was held before the Honorable Merna B. Marshall on April 13, 1977. After hearing psychiatric testimony and observing Kerrigan, Judge Marshall denied the petition.*fn1 Kerrigan appealed. We affirm.
[ 271 Pa. Super. Page 407]
The applicable law regarding criminal detention of persons found incompetent to stand trial is found in Section 403 of the Mental Health Procedures Act at 50 P.S. § 7403:
§ 7403. Hearing and determination of incompetency to proceed; stay of proceedings; dismissal of charges.
(a) Competency Determination and Burden of Proof. -- The moving party shall have the burden of establishing incompetency to proceed by clear and convincing evidence. The determination shall be made by the court.
(b) Effect as Stay -- Exception. -- A determination of incompetency to proceed shall effect a stay of the prosecution for so long as such incapacity persists, excepting that any legal objections suitable for determination prior to trial and without the personal participation of the person charged may be raised and decided in the interim.
(c) Defendant's Right to Counsel; Reexamination. -- A person who is determined to be incompetent to proceed shall have a continuing right to counsel so long as the criminal charges are pending. Following such determination, the person charged shall be reexamined not less than every 90 days by a psychiatrist appointed by the ...