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filed: December 2, 1983.


No. 418 PHILADELPHIA, 1982, Appeal from an Order of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 81-1111.


Blake E. Dunbar, Jr., Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Com., appellee.

Cavanaugh, Montemuro and Hester, JJ.

Author: Hester

[ 322 Pa. Super. Page 507]

On February 19, 1981, appellant, Jerry Lee Smith, and his co-conspirator, Brenda Meinkrantz, departed Knob Noster, Missouri by automobile for Schwenksville, Montgomery County, Pennsylvania for the purpose of unlawfully removing money from the apartment of eighty-year-old Martha Thomas. The co-conspirators arrived in Montgomery County the next day and checked into a motel. Late in the evening of February 20, 1981, Meinkrantz drove appellant to the victim's apartment and left him.

A few hours later, on February 21, 1981, Meinkrantz returned to the victim's apartment, met appellant and assisted him by carrying a tan overnight-bag which he had handed her. The co-conspirators promptly departed the apartment, drove to the Pennsylvania Turnpike and counted $700.00 in stolen cash inside the overnight bag. Later that day, the victim's body was discovered by law enforcement officials in her master bedroom. A post-mortem operation revealed that she had died of manual strangulation.

Appellant was apprehended approximately one month later and charged with murder, voluntary manslaughter, involuntary manslaughter, aggravated assault, recklessly endangering another person, robbery, theft by unlawful taking, receiving stolen property, burglary and criminal conspiracy.

[ 322 Pa. Super. Page 508]

On September 11, 1981, during the selection of the jury, appellant entered a plea of guilty to the charges of second-degree murder, criminal conspiracy and burglary in return for a recommendation from the prosecution for a life sentence on second-degree murder and suspended sentences on criminal conspiracy and burglary. Remaining charges were nol prossed. Appellant was also sentenced on September 11, 1981.

On October 27, 1981, appellant filed a motion to challenge his guilty plea nunc pro tunc on the alleged grounds that he was not mentally competent to enter his plea nor was he mentally competent to understand his right to challenge his guilty plea within ten days following sentencing. Appellant's trial counsel withdrew from the case on November 12, 1981, and newly-appointed counsel filed an amended motion to challenge the guilty plea nunc pro tunc. This amended motion included the additional allegations of a defective guilty plea colloquy and ineffectiveness of counsel during the colloquy and for a period of time in excess of ten days thereafter.

On January 12, 1982, a hearing was conducted for the sole purpose of determining whether appellant was competent following the entry of his guilty plea. This hearing was necessary to further determine whether he knowingly, voluntarily and intelligently chose not to challenge his guilty plea within the ten-day period prescribed by Pa.R.Crim.P. No. 321. Following the hearing, the lower court found appellant to be competent for the ten-day period commencing with the day of the guilty plea and sentencing. It also found appellant's counsel to be effective and the plea voluntarily entered. This appeal was filed from that Order of Court, dated January 12, 1982.

Appellant argues first that the lower court erred in finding him legally competent for the ten-day period immediately following the guilty plea colloquy and sentencing on September 11, 1981. At the January 12th hearing, appellant attempted to demonstrate through the testimony of Dr. Paul A. Grayce, a board certified psychiatrist at Norristown

[ 322 Pa. Super. Page 509]

State Hospital, that he was so emotionally distraught that he could neither process information nor make responsible decisions for a significant period following the entry of his plea. Dr. Grayce administered therapy to appellant on three occasions between September 14 and September 21, 1981. Conversely, appellant's trial counsel and former mother-in-law, both of whom visited with and counseled appellant immediately following his plea, testified that despite his severe distress, appellant was coherent and responding rationally to their comments and advice.

A defendant is mentally competent to enter a plea of guilty providing he had the opportunity at the appropriate time to consult with counsel, understand counsel's advice and information and understand the nature of the pending criminal proceedings against him. Commonwealth v. Scott, 271 Pa. Super. 545, 414 A.2d 388 (1979); Commonwealth v. Marshall, 454 Pa. 413, 312 A.2d 6 (1973). Although this rule is commonly applied to determine whether a defendant knowingly, voluntarily and intelligently entered a plea of guilty, it can also apply to the defendant's course of action in choosing or not choosing to challenge his guilty plea.

Dr. Grayce treated appellant and administered therapy for him on September 14, 15 and 21, 1981, consuming four hours. Although he actually saw appellant on a daily basis throughout the ten-day period within which the motion to challenge the plea could be filed, most of these were brief moments not set aside for evaluation, treatment or therapy. We note that Dr. Grayce and other members of his forensic team were of the opinion that appellant was afflicted with a borderline personality disorder causing instability in his emotions, relationships with others and perception of himself. Furthermore, he was subjected to rapid mood changes which bring either suicidal-type depression or baseless elation. More importantly, Dr. Grayce opined that these disorders precluded appellant from understanding his legal status and making the proper decision.

[ 322 Pa. Super. Page 510]

The Commonwealth first responded with the testimony of appellant's trial counsel. On September 12, 1981, the day following the guilty plea colloquy, counsel visited appellant for forty-five minutes and discussed his pardon rights, appeal rights and the ten-day period within which the motion to challenge the guilty plea must be filed. Furthermore, he reiterated the three bases for challenging the plea. At that time, according to trial counsel, appellant did not want to challenge the plea. Trial counsel further observed that appellant was "very distraught"; however, this did not prevent him from understanding his legal rights and contributing to a meaningful discussion.

Counsel also visited appellant the next day. Although he again discussed the guilty plea with him, most of the time involved a discussion between appellant and his family. Counsel was a passive participant. Counsel was of the opinion that appellant was more agitated that day than during any prior meeting, but that he again understood "the situation" and did not instruct counsel to file a motion to challenge the plea.

On September 16, 1981, counsel was instructed by Dr. Grayce that he found appellant not competent to exercise his rights with respect to challenging the guilty plea. With this in mind, counsel visited appellant the next day for the sole purpose of discussing his procedural rights. Appellant remained upset, but counsel still believed he ...

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