No. 1297 October Term 1977 Appeal from Judgment of Sentence of the Court of Common Pleas of Phila. County, Trial Div., Crim. Sect., at Nos. 473 & 477 August Term 1976.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Spaeth and Lipez, JJ.
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Appellant was charged with burglary,*fn1 rape,*fn2 robbery,*fn3
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two counts of involuntary deviate sexual intercourse,*fn4 and simple*fn5 and aggravated assault.*fn6 He was tried by a judge sitting without a jury and was acquitted on the charges of rape, robbery,*fn7 and involuntary deviate sexual intercourse but convicted of burglary and aggravated assault. Post-verdict motions were denied and he was sentenced to five to ten years imprisonment on the aggravated assault conviction and to a concurrent term of ten years probation on the burglary conviction. On this appeal appellant raises arguments with respect to his competency to stand trial, the sufficiency of the evidence, and the propriety of the sentences.*fn8
The facts were as follows. At 9:20 in the evening of July 10, 1976, the complainant, a sixty-nine year old woman, stepped out onto the front porch of her apartment building to get the correct time from a clock on the side of a funeral parlor next door. As she turned back to re-enter the apartment building she was pushed from behind by appellant, who demanded that she give him thirty-five cents. When she told appellant that she had no money, he shoved her inside the open front door, followed her inside, and locked the door behind him. Inside the hallway, he threw her to the floor and began to beat her about the face, head, and abdomen, and to tear off her clothes. He then got down on top of her, according to the complainant, and engaged in
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anal, vaginal, and oral intercourse with her.*fn9 When she screamed for help from her neighbors and the police, he continued to beat her, and threatened her with a knife. She testified that she saw no knife, however. The police finally arrived, forced open the front door, and apprehended appellant.
At appellant's request a competency hearing was held before trial. At the conclusion of this hearing the lower court determined that appellant was competent to stand trial. Appellant argues that the lower court erred both in placing the burden of proving incompetency on him and in holding him competent to stand trial.
Section 403(a) of the Mental Health Procedures Act of 1976 (1976 Act) provides that "[t]he moving party shall have the burden of establishing incompetency to proceed by clear and convincing evidence." 50 P.S. § 7403(a).*fn10 In imposing the burden of proving his incompetency on appellant, the lower court was thus acting in accordance with the statutory law. Commonwealth v. Hunt, 259 Pa. Super. 1, 6, 393 A.2d 686, 689 (1978); see Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973). Appellant argues that even so, the burden of proving his competency should have been placed on the Commonwealth.
Appellant's main argument in support of this proposition is that competency to stand trial is an element of the offense, so that the Commonwealth must prove it beyond a reasonable doubt. See Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974); see also Commonwealth v. Sojourner, 268 Pa. Super. 488, 408 A.2d 1108 (1979). Appellant points to
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the Crimes Code definition of the term "element of an offense,"*fn11 and to the case law, and contends that incompetency may negate culpability just as a claim of ignorance, mistake, or duress may. See Commonwealth v. Jones, 242 Pa. Super. 303, 312, 363 A.2d 1281, 1285 (1976) (discussing ignorance, mistake, or duress as opposed to entrapment).
Appellant also argues that even if competency is not an element of the offense, it is so similar to an element that the Commonwealth should be required to prove it. In support of this argument appellant discusses the defenses of entrapment and insanity, contending that incompetency is a defense similar to them. See Commonwealth v. Lynch, 477 Pa. 390, 383 A.2d 1263 (1978); Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977); Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974). According to appellant, just as in a case where a question of a defendant's sanity arises the Commonwealth must prove sanity beyond a reasonable doubt, so too, where, as here, a question of competency arises, the Commonwealth should be required to prove competency beyond a reasonable doubt. See Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979); Commonwealth v. Demmitt, supra.
While appellant has presented a very full discussion of the issue of burden of proof with respect to elements and defenses, nevertheless his conclusions as to the burden of proving competency must be rejected. A defendant's competency to stand trial is not an element of the offense, and his incompetency is not a defense. Competency involves a defendant's mental state at trial, not his mental state at the time of the offense. The fact that a defendant becomes
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incompetent after the offense does not affect his culpability for its commission, although it may affect the timing of his trial. The elements of the crime, including the defendant's mens rea, are proved by evidence of the defendant's mental state and acts at the time the offense is committed. The defendant's competency to stand trial is proved by evidence of his mental state at the time of trial.*fn12
Appellant argues, however, that the constitutional guarantees of due process of law require that the Commonwealth bear the burden of proving a defendant's competency at the time of trial. In support of this argument appellant cites In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), where the Court stated:
Lest there remain any doubt about the constitutional statute of the reasonable doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every ...