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filed: December 14, 1984.


No. 1185 Philadelphia 1983, Appeal from the PCHA April 21, 1983 im the Court of Common Pleas of Delaware County, Criminal Nos. 5986, 5980, 8091-1976.


Joseph Branca, Assistant Public Defender, Media, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.

Cirillo, Olszewski and Montgomery, JJ.

Author: Olszewski

[ 336 Pa. Super. Page 317]

This appeal follows denial of appellant's petition for relief under the Post Conviction Hearing Act.

On August 29, 1976, two children died in a fire at 1138 Spruce Street, Chester. Investigation by the Pennsylvania State Police Fire Marshal revealed that the fire had been

[ 336 Pa. Super. Page 318]

    set. As a result of their investigation, the Chester police filed criminal complaints against appellant, then age 14. The girl was bound over, following a preliminary hearing, on charges of criminal homicide-murder, criminal homicide, burglary, conspiracy-homicide, criminal mischief, recklessly endangering another person, causing a catastrophe and arson. Appellant was tried as an adult on all counts. Jury trial commenced on March 14, 1977. Verdicts of guilty were returned on two charges of second degree murder, on burglary, arson, recklessly endangering another person, and risking and causing a catastrophe. Counsel filed boilerplate post-verdict motions. Those post-verdict motions denied, appellant was sentenced to concurrent terms of life imprisonment, to be followed at the close of the life terms, by an additional twenty to forty years imprisonment. No direct appeal was taken.

Appellant makes four allegations of ineffective assistance by counsel. She first charges that counsel was ineffective for failing to obtain an independent determination of her competency to stand trial and for failing to challenge her certification as competent to stand trial.

Conviction of an accused while she is legally incompetent violates due process. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966); Commonwealth v. Knight, 276 Pa. Super. 348, 357, 419 A.2d 492, 496 (1980) (and cases cited therein). Incompetence to proceed on criminal charges is defined by statute. "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 or assist in his defense, he shall be deemed incompetent to be tried, convicted or sentenced so long as such incapacity continues." 50 P.S. § 7402(a). Appellant was found incompetent by three psychiatrists, competent by a fourth. On the weight of that last evaluation, she proceeded to trial and conviction.

[ 336 Pa. Super. Page 319]

The PCHA court found that appellant had presented no evidence to establish that she was in fact incompetent to stand trial in March of 1977.*fn1 It concluded, "without such

[ 336 Pa. Super. Page 320]

    evidence Defendant's position does not rise above a mere allegation." While we sympathize with the lower court's predicament, we believe that the inquiry cannot end there.

Admittedly, difficulties attend the court's attempt to determine retrospectively an accused's competence to stand trial. See Pate v. Robinson, 383 U.S. at 387, 86 S.Ct. at 843; Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Where, as here, years separate the trial and the challenge, the difficulties may be insurmountable. In Commonwealth v. Dimitris, for example, Judge Spaeth for the Court en banc wrote: "To hold a hearing now [1977] on the question of appellant's competency to stand trial in 1973 would not be sufficient safeguard of his due process rights." 247 Pa. Super. 486, 493-494 n. 6, 372 A.2d 930, 933 n. 6 (1977); compare Commonwealth v. Hunt, 259 Pa. Super. 1, 12 n. 13, 393 A.2d 686, 691 n. 13 (1978) (plurality opinion) (remand for evidentiary hearing after passage of five years where the record contained four psychiatric reports written at or about the time of trial). This Court has addressed those difficulties. If the record initially reveals serious doubts about a defendant's competency, the reviewing court will proceed to determine whether the record conclusively establishes the accused's incompetency. Where the record does not permit such a judgment, the court will order a remand for an evidentiary hearing or, in unique circumstances where a remand hearing would not satisfy the demands of due process, grant a new trial. See Commonwealth v. Megella, 268 Pa. Super. 316, 325, 408 A.2d 483, 488 (1979) (Cercone, J., concurring) and cases cited therein.

The psychiatric reports relied on in this case do not appear of record. From testimony at the PCHA hearing, we deduce that there exist a social history from Allentown State Hospital dated January, 1973, summaries of her condition

[ 336 Pa. Super. Page 321]

    from Allentown State Hospital dated September 19 and September 24, 1974; a school summary dated April 28, 1975; a report from the Mental Health Institute for Children at Allentown State Hospital dated June 27, 1973; progress notes from Crozer-Chester Mental Health Center dated September, 1975 and December, 1975; a summary from Child Care Center of Delaware County, for the period June, 1975, and September, 1976, which included a psychiatric evaluation dated December 10, 1975, and a psychological examination dated August 25, 1976; a discharge summary from Eastern State School dated November 23, 1976, which included a psychological examination by Signe Larson, dated October 4, 1976; a psychiatric evaluation of Dr. Fong dated September 14, 1976; and another by Dr. Fong dated November 30, 1976; a report of a mental health hearing by Dr. Barry, dated December 3, 1976; a discharge summary from Norristown State Hospital dated January 16, 1977; a psychiatric evaluation done by Divine Providence Hospital in Williamsport, covering the period August 3 to 30, 1977; and a psychological evaluation by Muncy State Prison dated September 11, 1979.

Denied access to those reports, we turn to the facts of the case. Appellant has presented evidence which raises serious doubts about her competency at the time of trial. The fire occurred on August 29, 1976. Appellant had spent 2 1/2 of the preceding 4 years as a patient undergoing treatment for psychological disorders. She left the institution against the advice of a doctor who felt appellant was "too compulsive and not able to control herself." Following her arrest September 3, 1976, appellant was evaluated at the request of prison authorities. The court-appointed psychiatrist, Dr. John Fong, superintendent of Haverford State Hospital, found the girl incompetent to stand trial. She was placed in the Eastern State School and Hospital. There she was treated, tested and again found incompetent to stand trial. On December 3, 1976, a second psychiatrist, Dr. Theodore J. Barry, also of Haverford State Hospital, examined appellant and diagnosed her condition as chronic undifferentiated

[ 336 Pa. Super. Page 322]

    schizophrenia. He recommended she be hospitalized. The girl was committed to Norristown State Hospital. Two weeks after appellant's arrival at Norristown, the staff of that institution found her competent to stand trial.

More than two months later, the matter proceeded to trial without objection.*fn2

In the present case it appears from the trial judge's opinion that he relied on the conclusions reached by the staff of Norristown State Hospital.*fn3 He fails to explain, however, what facts gave rise to these conclusions or even what standard the staff applied. None of the staff members testified nor were any of their reports made part of the record. On review, we are unable to come to a final judgment as to the sufficiency of the last examination. See Commonwealth v. Hunt, 259 Pa. Super. at 11 n. 10, 393 A.2d at 691 n. 10 (psychiatrist's report probative, but not dispositive, on question of appellant's competence); Commonwealth v. Savage, 270 Pa. Super. 388, 411 A.2d 774 (1979) (per Cirillo, J.).*fn4

[ 336 Pa. Super. Page 323]

The lower court failed to make findings of fact regarding the girl's competency. With neither reports nor findings of fact on record, we are constrained to remand this matter. We do so reluctantly, mindful of the interests of judicial economy in the administration of criminal justice. Here, however, the deficiencies of the record impel the result.

On remand, the court is directed to hold an evidentiary hearing limited to the question of appellant's competence to stand trial in March of 1977. If the court below concludes that she was competent at the time of trial, the judgment of sentence as modified will be upheld. See, infra, pp. 328-329. If appellant is found to have been incompetent, judgment of sentence is reversed and a new trial is ordered.

We find no merit to appellant's remaining claims.

Appellant next argues that trial counsel was ineffective for failing to present the defense of diminished capacity. It is true appellant was entitled to present evidence that she suffered from a mental defect which rendered her incapable of forming the specific intent to kill. Commonwealth v. Walzack, 486 Pa. 210, 360 A.2d 914 (1976). Under the Crimes Code, negation of a specific intent to kill would have reduced the crime to murder of the third degree. See

[ 336 Pa. Super. Page 32418]

Pa.C.S. § 2502. Dr. Mark Shulkin, the court-appointed psychiatrist, testified that on the date of the fire, August 29, 1976, appellant lacked the capacity to form the specific intent to kill. Her IQ is listed at 69 or 70. Psychological tests conducted shortly after the fire indicated that appellant's thoughts are little more than animal instinct with no consideration of circumstances and no thinking beforehand.

Appellant was convicted, however, of second, not first, degree murder. Under the then-operative statute, "[a] criminal homicide constitutes murder of the second degree when the death of the victim occurred while defendant was engaged as a principal or accomplice in the perpetration of a felony."*fn5 18 Pa.C.S. § 2502(b). The felony here is arson. 18 Pa.C.S. § 3301, 1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 1973; amended 1982, April 29, P.L. 363, No. 101, § 1, effective in 90 days; 1982, Dec. 7, P.L. 811, No. 227, § 1, effective in 60 days. Conviction for arson will stand on proof that an accused intended to set a fire and damage an inhabited building. See § 3301(b)(1); Commonwealth v. Trafford, 312 Pa. Super. 578, 581, 459 A.2d 373, 374 (1983) (to convict a person of arson, prosecution must establish beyond a reasonable doubt that there was a fire willfully and maliciously set by defendant). Murder follows as felony-murder; the killing need not be intentional. Commonwealth v. Tarver, 493 Pa. Super. 320, 426 A.2d 569 (1981). For the crime, the statute mandates a term of life imprisonment. See 18 Pa.C.S. § 1102(b).

Nothing in the record suggests appellant lacked capacity to form the requisite intent for arson. Dr. Shulkin testified that "she would be able to form the general intent to enter the house, to destroy this property . . . ." "[I]n view of her having set herself on fire and suffered really serious injuries," Shulkin concluded, "she would know that setting a fire could cause serious damage to people." Trial counsel

[ 336 Pa. Super. Page 325]

    cannot be deemed ineffective for failing to advance the diminished capacity defense.

Appellant challenges, as pro forma, trial counsel's representation at the transfer hearing. The Commonwealth sought to have appellant, then age fourteen, certified to be tried as an adult on the subordinate charges. Original jurisdiction for these charges, voluntary and involuntary manslaughter, recklessly endangering another person, causing or risking a catastrophe, criminal mischief, burglary and arson, lay in the juvenile court. The Commonwealth, as the party objecting to the juvenile court's jurisdiction, had the burden of establishing that appellant was not amenable to treatment, supervision or rehabilitation as a juvenile, that she was not committable to an institution for the mentally retarded or mentally ill and that the interests of the community required that the child be placed under legal restraint or discipline. 11 P.S. § 50-325, repealed and reenacted as 42 Pa.C.S. § 6355. See Commonwealth v. Greiner, 479 Pa. 364, 370, 388 A.2d 698, 700 (1978). To that end, the Commonwealth presented witnesses; defense counsel offered none. Counsel limited his argument to two statements. He stated his belief that appellant needed a program of rehabilitation; he noted that the fact that appellant was charged with murder served to remove only the charge of murder from the juvenile court's jurisdiction. The court listened, then rendered its decision certifying appellant for trial as an adult on all charges in conjunction with the charge of murder.

We note the shortcomings of trial counsel's representation at the certification hearing. Counsel failed to introduce the fact of appellant's diminished mental capacity -- an IQ of 69 and a diagnosis of undifferentiated schizophrenia. At no time did he petition for transfer of the murder charges to the juvenile side of the court of common pleas. See 11 P.S. § 50-303, repealed and reenacted as 42 Pa.C.S. § 6322; Commonwealth v. Keefer, 470 Pa. 142, 147 n. 7, 367 A.2d 1082, 1084 n. 7 (1976), cert. denied Keefer v. Pennsylvania, 434 U.S. 1009, 98 S.Ct. 717, 54 L.Ed.2d 751

[ 336 Pa. Super. Page 326]

(1978), reh. denied 435 U.S. 938, 98 S.Ct. 1514, 55 L.Ed.2d 534 (1978). While we do not condone counsel's actions, we conclude that assistance was not ineffective under the standards enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

The guidelines for certification under the Juvenile Act emphasize the child's amenability to care "as a juvenile through available facilities." 11 P.S. § 50-325, repealed and reenacted as 42 Pa.C.S. § 6355. In appellant's case, there were no facilities available for a child charged with murder by arson. As Judge Reed explained:

Both the Court and the Delaware County Juvenile Court exerted substantial energies in an effort to place the Defendant, which efforts extended as far as Canada. However, the nature of the charges, specifically Murder with Arson, closed all regular facilities to the Defendant . . . Nothing more could have been done for her in the Juvenile System at that time.

The juvenile court, in the first instance, had no jurisdiction over the murder counts. Arson and the lesser-related charges were part and parcel of those charges. Given the relation of the charges, we find no error in the hearing court's decision to certify appellant to be tried as an adult on all charges. See Keefer, 470 Pa. at 147-148, 367 A.2d at 1085. Appellant's third claim must fall.

Appellant last argues that trial counsel erred in failing to request the so-called "mercy charge." In every prosecution for murder, a jury may return, and the court must accept, a verdict of voluntary manslaughter -- even in the absence of any evidence of voluntary manslaughter. See Commonwealth v. Jones (a/k/a Dupree), 473 Pa. 211, 219 n. 5, 373 A.2d 1338, 1341 n. 5 (1977) (Roberts, J., concurring). Appellant, as a matter of law, was entitled to an instruction on voluntary manslaughter. Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974) (plurality opinion).

[ 336 Pa. Super. Page 327]

Although trial counsel failed to request the charge, the court did instruct the jury on voluntary manslaughter. The PCHA court concluded that the question of ineffectiveness was mooted by the fact that the trial court did give the voluntary manslaughter charge. Appellant contends that the charge fails for failure to alert the jury that "pursuant to its inherent mercy dispensing power, [it] may from sympathy or awareness of extenuating circumstances, find a defendant guilty of a lesser offense than the evidence could support." Jones (a/k/a Dupree), 473 Pa. at 218-219, 373 A.2d at 1341. The charge, in pertinent part, reads:

However, if you do not find the Defendant guilty of murder under the instructions we have just given you, you may nevertheless find her guilty of voluntary manslaughter if you are satisfied beyond a reasonable doubt that without justification she caused the death of either Brian or Derrick Harvey or both, with an intent to kill or inflict great bodily harm.

We find no merit to appellant's final claim.

Appellant has failed to challenge the legality of the sentences imposed consecutive to her life terms for murder. A question as to the legality of the sentence, however, is never waived. Commonwealth v. Ford, 315 Pa. Super. 281, 296, 461 A.2d 1281, 1288 (1983) (and cases cited therein). We have addressed the issue and conclude that judgment of sentence was improperly entered on the non-murder charges. Mindful that the court on remand may find appellant was competent to stand trial in March of 1977, we vacate the sentences entered on those charges.

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), quoted in Commonwealth v. Tarver, 493 Pa. 320, 325, 426 A.2d 569, 572 (1981). In addition to two counts of murder in the second degree, appellant's sentence

[ 336 Pa. Super. Page 328]

    reflects convictions for burglary, arson, causing a catastrophe and recklessly endangering another person. Because we find no legislative intent to cumulate the punishments, we vacate the sentence imposed on the subordinate offenses. See Commonwealth v. Bostic, 500 Pa. 345, 456 A.2d 1320 (1983) (convictions for aggravated robbery and committing a crime of violence while in possession of a firearm do not merge for the purposes of sentencing); see also Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (Double Jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended).

Conviction for arson under the then-operative statute required proof that appellant had intentionally started a fire and thereby recklessly placed another person in danger of death or bodily injury. 18 Pa.C.S. § 3301 (amended 1982). Risking catastrophe followed on proof that the girl recklessly created a risk of catastrophe in employment of fire. 18 Pa.C.S. § 3302(b). Causing catastrophe rested on a showing that she recklessly or intentionally or knowingly caused a catastrophe by fire. 18 Pa.C.S. § 3302(a). And conviction for recklessly endangering another person will stand where appellant has recklessly engaged in conduct which placed another person in danger of death or serious bodily injury. 18 Pa.C.S. § 2705. The three statutes address, with varying degrees of specificity, the same act. Convictions on the lesser counts should have merged with the arson conviction for the purposes of sentencing. Cf. Commonwealth v. Williams, 290 Pa. Super. 209, 434 A.2d 717 (1981) (recklessly endangering merges with aggravated assault).

Either of the felony counts, burglary or arson, could support the murder convictions under a felony-murder theory. See, e.g., Commonwealth v. Maddox, 307 Pa. Super. 524, 453 A.2d 1010 (1982) (burglary merges with felony-murder). On the facts of the case, the burglary was a necessary first step to the arson felony-murder. The State Police investigation revealed that the fire had been set in two separate locations in the first floor front room of the

[ 336 Pa. Super. Page 329]

    house. From there it spread and engulfed the structure. The statute defines burglary as entering an occupied dwelling with intent to commit a crime therein. Here the crime was arson. As a result of the arson, two children died. Applying the Blockburger test, we conclude that the burglary and the arson were constituent offenses of the felony-murders. We therefore vacate the judgment of sentence entered at those counts.

Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

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