No. 235 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Crawford County, Criminal Division, No. 349 and 394 of 1976.
Anthony Vardaro, Meadville, for appellant.
John M. Dawson, First Assistant District Attorney, Meadville, for Commonwealth, appellee.
Cavanaugh, Rowley and Montgomery, JJ.
[ 308 Pa. Super. Page 491]
Appellant was convicted on November 11, 1976, of two counts of theft by deception and sentenced to one and one-half (1 1/2) to five (5) years imprisonment. Judgment of Sentence was affirmed on direct appeal in a per curiam order by an en banc panel of this court. Commonwealth v. Dandar, 267 Pa. Super. 623, 408 A.2d 534 (1979).
We will not even attempt to list the numerous petitions and appeals which appellant has filed with the Courts of Common Pleas, the Pennsylvania Appellate Courts and the Federal Courts during the last six years. The present appeal is from an order of January 16, 1980, denying appellant's petition for relief under the Post-Conviction Hearing Act (PCHA)*fn1 without hearing. Originally appellant
[ 308 Pa. Super. Page 492]
was unrepresented, but on July 7, 1980, this court entered an order directing the PCHA court to appoint counsel to represent appellant. Present counsel was appointed on July 23, 1980.
Three issues are raised in this appeal: 1) Was trial counsel ineffective in failing to pursue appellant's incompetence to stand trial in both his first and second trials?; 2) Did the trial held on November 10, 1976, place appellant twice in jeopardy? and 3) Should the PCHA court have held a hearing on appellant's allegation concerning after-acquired evidence?
Appellant's first trial began on September 24, 1976. However, his "bizarre" behavior during opening arguments raised serious doubts in the trial judge's mind as to his competence to stand trial. Therefore, the court declared a mistrial and ordered a psychiatric examination. An hour after appellant was hospitalized, the court was advised by the psychiatrists that they could find no evidence of mental illness. In their opinion, appellant had been "putting on a show" and was competent to stand trial. The case was continued to the November term of court and trial began on November 10, 1976.
The argument that counsel was ineffective in failing to pursue appellant's alleged incompetence, with respect to the September 24 trial, is patently frivolous. A mistrial was declared on the date for the very reason that appellant appeared to be incompetent.
With respect to the November 10 trial, the argument is likewise without merit. The record shows that counsel did in fact pursue the competency issue. Prior to that trial, he filed a petition seeking another psychiatric examination, which was denied. The competency issue was ...