Appeal from the Order Dated June 26, 1987 in the Court of Common Pleas of Luzerne County Criminal Division, No. 2 of 1986
Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Com., appellant.
David R. Lipka, Plymouth, for appellee.
Olszewski, Watkins and Cercone, JJ.
[ 372 Pa. Super. Page 307]
This is a Commonwealth appeal from the order of the lower court of June 26, 1987 finding appellee, Diane Hazur, to be incompetent to stand trial and dismissing the charges of driving under the influence that were filed against her.
Appellee was arrested and charged with driving under the influence in Luzerne County. Trial was scheduled to begin on April 21, 1987. However, on that date appellee's counsel requested a hearing pursuant to the Mental Health Procedures Act 50 P.S. § 7401 et seq. which provides a procedure for determining a defendant's competency to stand trial. The court granted appellee's request and conducted a hearing on the matter. Testimony adduced at the competency hearing from Dr. Thomas Fiume, a psychiatrist,
[ 372 Pa. Super. Page 308]
established that appellee was currently under his care for depression. Appellee's treatment was the result of a suicide attempt precipitated by a divorce and alcohol abuse. Dr. Fiume stated that despite her depression, appellee was a supervising nurse to one hundred twenty patients, cared for her elderly parents, attended church functions and maintained her own home. It was Dr. Fiume's expert opinion that appellee could assist her attorney in preparing a defense but would not be able to testify in her own behalf as the thought of having to publicly explain her behavior was causing her to mentally break down and her depression to deepen perhaps to the point where she would become suicidal again. Following Dr. Fiume's testimony the court questioned appellee extensively concerning her comprehension of the charges and her understanding of the procedures that she would go through should her case go to trial. Appellee acknowledged her comprehension of all matters. At the close of the hearing the court continued the proceedings for sixty (60) days, ordered appellee to continue her treatment with Dr. Fiume and ordered that a progress report of her treatment be presented to the court. On June 22, 1987, a second hearing was conducted as to appellee's competency to stand trial. As before, Dr. Fiume testified that appellee could function socially but when a hearing date approached she became depressed and "decomposed" or broke down by crying or acting distressed. On June 26, 1987 the court issued an order dismissing the charges against appellee and stating that "the Court finds that due to the passage of time and its effect upon the criminal proceedings filed to the above term and number, it would be unjust to resume the prosecution against the defendant, Diane Hazur". This timely Commonwealth appeal followed.
The Commonwealth seeks review of the following issues: whether appellee established her incompetency to proceed to trial pursuant to 50 P.S. § 7403(a)*fn1 by clear and convincing
[ 372 Pa. Super. Page 309]
evidence and whether the lower court abused its discretion by dismissing the charge against appellee.*fn2
The mental competence of an accused is regarded as an absolute and basic condition of a fair trial. See Commonwealth v. Marshall, 456 Pa. 313, 318 A.2d 724 (1974). A defendant asserting mental incompetence to stand trial has the burden of proving incompetency by clear and convincing evidence and the decision as to competency rests within the discretion of the trial judge whose determination will not be reversed unless it is unsupported by the record. See Commonwealth v. Knight, 276 Pa. Super. 348, 419 A.2d 492 (1980). The test for competency is whether the defendant can comprehend his position as one accused of an offense and cooperate with his counsel in making a rational defense. Under this test, a person may be competent to stand trial even if he has a history of mental illness. See Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979); Commonwealth v. Pifer, 284 Pa. Super. 170, 425 A.2d 757 (1981). The Commonwealth maintains that the lower ...