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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. ยง 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 ...

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