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COMMONWEALTH PENNSYLVANIA v. MICHAEL DUANE THOMAS (10/09/81)

filed: October 9, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL DUANE THOMAS, APPELLANT



No. 277 April Term, 1978, Appeal from the Order and judgment of sentence, Court of Common Pleas, Criminal Division, Allegheny County, at No. CC7404735A.

COUNSEL

Lester G. Nauhaus, Public Defender, Pittsburgh, for appellant.

Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.

Cercone, President Judge, and Wieand and Hoffman, JJ.

Author: Cercone

[ 291 Pa. Super. Page 265]

The present appeal comes to us from an order of the criminal division of the common pleas court of Allegheny County purporting to revoke appellant's parole and sentencing him to a term of incarceration of from two and a half years to five years. We now reverse the judgment of sentence entered and remand the case for proceedings not inconsistent with this opinion.

Appellant was arrested July 10, 1974 on a charge of robbery. Shortly after his arrest and before his arraignment appellant exhibited "bizarre behavior;" following testimony by the director of the County's Behavior Clinic, a board certified psychiatrist, appellant was ordered committed to Mayview State Hospital for sixty days. This commitment was made pursuant to Section 408 of the Mental

[ 291 Pa. Super. Page 266]

Health & Mental Retardation Act of 1966, Special Sess. No. 3, October 20, P.L. 96, art. iv, § 408; 50 P.S. § 4408. (Hereinafter, the Act of 1966 or the Mental Health & Mental Retardation Act of 1966.)*fn1 Upon the recommendation of the hospital's professional staff the commitment was ordered continued on November 8, 1974 for a period of ten months or appellant's attainment of competency sufficient, whichever was shorter, to allow him to stand trial on the robbery charge. In mid-January, 1975 the hospital informed the court that with the aid of medication appellant's condition had significantly improved and that he was now competent to stand trial. Appellant was ordered returned to the county jail January 27, 1975. Apparently a board certified psychiatrist employed by the Behavior Clinic advised the court on January 31, 1975 that appellant was not criminally responsible for the robbery he committed July 10, 1974 and recommended acquittal by reason of insanity.*fn2 The same psychiatrist recommended appellant's parole under the Act of 1911, May 11, P.L. 273, § 1; 1913, May 23, P.L. 335, § 1. 19 P.S. 1381 (Hereinafter, the Act of 1911). A bench trial was held February 13, 1975. Following the close of testimony, which included medical evidence, the court found appellant not guilty by reason of insanity.*fn3 Pursuant to the Act of 1911 the court ordered appellant placed on parole in the custody of the Allegheny County Parole and Probation Office for a period of five years.*fn4 As conditions for appellant's

[ 291 Pa. Super. Page 267]

    parole the court required him to reside with his father and to report to the nearest mental health clinic for continued medication and treatment as needed. No appeal was taken from this order of parole.

Appellant's behavior between February 13, 1975 and August 1, 1976 was marked by numerous psychotic episodes followed by varying periods of civil commitment. On August 1, 1976 appellant threw his two month old child down a flight of concrete city steps, which action caused the child's death. Appellant was apprehended shortly thereafter. Because he was once again determined to be unable to stand trial or assist in his defense he was committed to Fairview State Hospital, again pursuant to Section 408 of the 1966 Mental Health and Mental Retardation Act. He stood trial for the infanticide in April 1977, and was adjudged not guilty of murder by reason of insanity. The instant record does ...


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