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COMMONWEALTH PENNSYLVANIA v. MARK SIMMONS (02/02/84)

submitted: February 2, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
MARK SIMMONS, APPELLANT



NO. 01843 PHILA. 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, No. 611 to 613 August Term

COUNSEL

Cheryl Anne Furey, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Beck and Hoffman, JJ.

Author: Spaeth

[ 335 Pa. Super. Page 59]

This is an appeal from judgment of sentence for robbery, criminal conspiracy, and theft. Appellant argues that the trial judge should have recused himself.*fn1 We agree, and therefore vacate the judgment of sentence and remand for new trial.*fn2

On January 19, 1981, three men robbed a 78 year-old man at knifepoint, taking his money and car. Appellant and another man were caught after a police chase and were charged with the robbery. Appellant's counsel filed a petition for a mental examination to determine appellant's competency to stand trial. The petition was granted, and on November 24, 1981, appellant was found incompetent to stand trial. The psychiatric report stated: "The defendant currently appears to have a major mental illness which would appear to render him unable to cooperate with counsel in his own defense. It is felt that he is not capable of standing trial at the present time. It is recommended that he be committed for a period of 30 days to the Hahnemann Psychiatric Facility at the Philadelphia prisons for further

[ 335 Pa. Super. Page 60]

    evaluation and treatment." The trial court ordered appellant committed to the Forensic Unit of the Philadelphia Detention Center for a period not to exceed sixty days. On January 5, 1982, appellant was again examined. The psychiatric report, dated January 25, 1982, stated that appellant's condition was "consistent with the diagnosis of Schizophrenia-Paranoid Type . . . ." The report further stated that appellant was "able to proceed to trial . . . under the condition that he had received medication and inpatient treatment at that time," and that his paranoia was in remission but he would "need close follow-up . . . and continued monitoring." On February 18, 1982, appellant was found competent to stand trial.

On March 2, 1982, appellant appeared before the trial court to plead guilty. The court conducted an on-the-record colloquy during which appellant admitted his guilt:

Q. [THE COURT]: In other words, by pleading guilty to this count of the robbery information, you are saying that on January 19, 1981, in Philadelphia County, in the course of committing a theft, you threatened a man by the name of Walter Shelton and put him in fear of immediate, serious bodily injury and by means of that, you were able to take his car, wallet and keys. Do you agree that's what you did?

A. [APPELLANT]: Yes, sir.

N.T. 3/2/82 at 41.

Later in the colloquy the court asked:

Q. Are you pleading guilty because you are, in fact, guilty?

A. I don't understand what you're saying.

Q. Are you pleading guilty because you are guilty?

MR. DAVIS [ASSISTANT DISTRICT ATTORNEY]: Did you do it, is what he's asking you?

MR. CORCORAN [DEFENSE COUNSEL]: The judge wants to know if you did do what you're charged with? Were you with Jerome Gay and did you do what they charged you with?

THE DEFENDANT: No.

[ 335 Pa. Super. Page 61]

BY THE COURT:

Q. What's that?

A. No.

MR. DAVIS: Can he talk to his lawyer?

THE COURT: Yes.

N.T. 3/2/82 at 44, 45.

After appellant had consulted with his attorney, the Commonwealth presented the facts of the case. The court again questioned appellant:

BY THE COURT:

Q. Mr. Simmons, did you hear the district attorney read that?

A. Yes, sir.

Q. Did you understand what he said?

A. Yes, sir.

Q. Now, do you agree with ...


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