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filed: August 20, 1982.


No. 2541 Philadelphia, 1980, APPEAL FROM THE ORDER OF THE COURT OF COMMON PLEAS, CRIMINAL SECT. OF PHILA. COUNTY at No. 1697 September Term 1977.


Margaret M. Boyce, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Montgomery and Lipez, JJ.

Author: Spaeth

[ 303 Pa. Super. Page 457]

This appeal is from the revocation of appellant's probation and the imposition of a sentence of imprisonment. We have concluded that the lower court properly revoked probation but that the case must be remanded for further evidence on whether appellant should be sentenced to prison or involuntarily committed to a mental institution.

This case began in September 1977, when seventy year old William Mulvenna was walking west on John F. Kennedy Boulevard in Philadelphia. Appellant walked up to Mr. Mulvenna and violently shoved him against a plate glass window, causing him to fall to the ground. As Mr. Mulvenna fell, appellant took his wallet and fled. The entire incident was witnessed by a police officer, who arrested appellant.

[ 303 Pa. Super. Page 458]

Appellant was tried for robbery and a jury found him guilty. Because he had a history of mental illness he was committed to Philadelphia State Hospital for a mental evaluation pending disposition of post-trial motions. In April 1978 post-trial motions were denied and appellant was recommitted for further evaluation. On July 31, 1978, appellant was sentenced to "five years probation; immediate parole granted; civil commitment to Philadelphia State Hospital for a period of up to ninety days." Slip op. at 4.

Appellant was discharged from the hospital on October 6, 1978, and ordered to report regularly to his probation officer and to attend a community mental health facility five days a week for out-patient treatment. By February 1979 appellant was in technical violation of his probation, and in September 1979 he was arrested on charges of terroristic threats and indecent exposure. After pleading guilty to these charges, appellant was again placed on probation.

Shortly after being released on probation for the second time appellant was again in technical violation by virtue of his repeated failure to report to his probation officer and to keep him informed of changes in address. Wanted cards were prepared, but appellant was permitted to remain at large.

Appellant next came to the probation officer in February 1980 without an appointment. He was rambling and disoriented, and wore a blond wig. He masturbated in front of a secretary and was found nude in the men's room. He was taken to an out-patient psychiatric center, from which he was released when arrangements were made for him to live at a boarding home.

On March 10, 1980, the probation department was notified that appellant had sexually assaulted a resident at the boarding home. Appellant fled the boarding home and wanted cards were prepared. On May 2, 1980, appellant was arrested. After two hearings, on July 8 and October 1, 1980, the lower court revoked appellant's probation and sentenced him to one and a half to five years in prison. It is from this judgment of sentence that appellant has appealed.

[ 303 Pa. Super. Page 459]

Appellant argues (1) that he was incompetent to participate in the probation revocation hearing; (2) that his probation was improperly revoked because his violations were non-willful; and (3) that in light of his continuing mental illness, the lower court should have committed him to a hospital for treatment rather than sentencing him to prison.*fn1


According to the Mental Health Procedures Act of 1976, 50 P.S. 7101 et seq.,

Whenever a person who has been charged with a crime is found to be substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense, he shall be deemed incompetent

[ 303 Pa. Super. Page 460]

    to be tried, convicted or sentenced so long as such incapacity continues.

50 P.S. ยง 7402(a).

Here, the lower court specifically found appellant competent to participate in the probation revocation hearing:

On October 1, 1980, when the Court finally revoked probation the defendant was not incompetent, as now alleged by the Defender Association. Dr. Camiel had testified that the defendant was no longer in need of hospitalization. The Defendant addressed the Court. He clearly understood the nature of the proceedings and the possible consequences. The mere fact that the defendant denied his illness and opposed Mr. Larrabee's proposal for continued out-patient medical treatment did not render him incompetent so as to invalidate the revocation proceedings.

Slip op. at 12.

The decision as to appellant's competency was within the discretion of the lower court. Commonwealth v. Knight, 276 Pa. Superior Ct. 348, 419 A.2d 492 (1980). In exercising its discretion to decide competency, however, a court must enter upon a careful and complete inquiry, and its decision should be an informed one based on the evidence. Commonwealth v. Smith, 227 Pa. Superior Ct. 355, 324 A.2d 483 (1974), citing United States v. Crosby, 149 App.D.C. 306, 462 F.2d 1201 (D.C.Cir.1972). Where the decision is not based on proper or sufficient evidence we will order the case remanded so that the court may make an informed decision. See, Commonwealth v. Marshall, 456 Pa. 313, 318 A.2d 724 (1974).

In addition to the opportunity to observe appellant, the lower court's determination of appellant's competency was evidently based on the evaluation of appellant by Dr. Camiel, a court-appointed psychiatrist. Unfortunately, Dr. Camiel's report was not included in the record as transmitted

[ 303 Pa. Super. Page 461]

    to us.*fn2 He did, however, testify at the probation revocation hearing.

Dr. Camiel testified that appellant was suffering from a serious mental illness but had responded well to psychotropic drugs, and with proper treatment, might be able to function independently in society. N.T. 10/1/80, 8. The doctor did not know whether, when he saw appellant, appellant was taking medication, but he said his diagnosis would have been unaffected:

Q. Would it have been important to know, Doctor, in making your evaluation, based upon the interview, whether or not at the time of the interview he was, in fact under medication?

A. No, I don't think so, because I think that my conclusions were I didn't feel that he was -- that he needed acute hospitalization at that time. There was some strange things about him. He did need acute hospitalization, and the recommendation, I think, basically was based on the history of refusal to take medications in the past and his stated objection or refusing medication in the future, when he was released.

So, I don't think whether or not he was on medication at that time was critical because I didn't find him floridly psychotic.

N.T. 10/1/80, 13-14.

In the course of describing appellant's mental condition, Dr. Camiel testified that "[his] considered medical opinion is that [appellant] rapidly cycles through periods of psychosis, craziness, interspersed with periods of relative normality." N.T. 10/1/80, 9. He further testified that

[ 303 Pa. Super. Page 462]

    at those times he would require the acute hospitalization that we talked about before which I think again would be brief, because at that point he would probably accept medications for a limited period of time, be able to regain enough of control of himself to be able to be placed back in the general prison population, but I do think he will cycle through psychotic periods again and again, yes. N.T. 10/8/80, 18.

We have considerable doubt whether this sort of testimony represents evidence sufficient to support the lower court's finding that when appellant's probation was revoked, appellant "was not incompetent . . . [and] no longer in need of hospitalization." Our doubt, moreover, is not dispelled but is rather strengthened by the evidence that Dr. Camiel's diagnosis of appellant's condition conflicted with that of another court-appointed psychiatrist, Dr. Boxer. Although Dr. Boxer's report was also not included in the record as transmitted to us, the lower court stated the report's conclusion in its opinion:

A report dated August 6, 1980 was prepared by Dr. Arthur D. Boxer. Dr. Boxer mistakenly evaluated the defendant's competency to stand trial. Dr. Boxer reported that during the interview, the defendant was agitated, but in control of his behavior. He refused to discuss possible penalties if "convicted." Dr. Boxer concluded that the defendant was in "partial remission without medication . . . .," but that ". . . he is not considered able to communicate with his counsel in his own defense because of his adamant refusal to consider all possibilities of charges lodged against him."

Slip op. at 7.

The court goes on to state that this report was considered at a hearing held on September 17, 1980, but that the court then ordered a further psychiatric examination of appellant to determine "whether it was appropriate to commit [appellant] as a probation violator." Slip op. at 8. The court offers no explanation of its decision to reject Dr. Boxer's findings that appellant was incompetent to stand trial. The

[ 303 Pa. Super. Page 463]

    court's rejection of Dr. Boxer's opinion is somewhat puzzling given appellant's aberrant behavior during the September hearing, when appellant apparently tried to attack the judge. As the lower court recounted the incident to appellant's counsel at the final revocation hearing on October 1, 1980:

To the point where it required two sheriffs to restrain him, when he found out he wasn't going to be released ...

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