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In the Interest of: R.D.

April 10, 2012

IN THE INTEREST OF: R.D. APPEAL OF: R.D. IN THE INTEREST OF: R.D. APPEAL OF: R.D. IN THE INTEREST OF: R.D. APPEAL OF: R.D.


Appeal from the Orders Entered January 13 and January 10, 2011, In the Court of Common Pleas of Allegheny County, Juvenile Division, at No. CP-02-JV-0001033-2009. Appeal from the Order Entered January 3, 2011, In the Court of Common Pleas of Allegheny County, Juvenile Division, at No. 09-1033. Appeal from the Order Entered April 11, 2011, In the Court of Common Pleas of Allegheny County, Juvenile Division, at No. JV 2009 - 1033.

The opinion of the court was delivered by: Shogan, J.:

J-A02014-12

IN THE SUPERIOR COURT OF PENNSYLVANIA

IN THE SUPERIOR COURT OF PENNSYLVANIA

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and COLVILLE*fn1 , JJ.

OPINION BY SHOGAN, J.:

Appellant, R.D., a minor, appeals from the dispositional order entered following an adjudication of delinquency based on evidence that he attempted to kill his former girlfriend, S.D., on October 31, 2007, by hitting her in the head with a hammer and physically assaulting her.*fn2 For the reasons that follow, we affirm.

Appellant and S.D. attended the same high school in Mt. Lebanon, Pennsylvania, and were romantically involved from the spring of 2006 until the end of the 2006-2007 school year. In late October 2007, Appellant and S.D. exchanged text messages about meeting in order to return each other's possessions. At the end of the school day on October 31, 2007, Appellant agreed to return S.D.'s possessions with the condition that she would take a walk with him; she complied. The two walked along a path near the Port Authority trolley tracks. While they were walking, Appellant struck S.D. in the back of her head with a hammer, causing her to fall. As she lay on the ground, Appellant physically assaulted S.D., inflicting injuries to her face and teeth. Appellant took S.D.'s cell phone from her pocket, broke it, and discarded it. During the assault, Appellant remarked that he wanted to kill himself. He also told S.D. that he had a knife. After the assault, Appellant led S.D. down the path toward a drug store, suggesting he would bandage her head.

While walking his dog, off-duty Allegheny County Detective Lawrence Carpico observed Appellant and S.D. on the path coming towards him. Appellant pulled S.D. down an embankment to avoid being seen by Detective Carpico. As Appellant reached for something in his backpack, S.D. escaped and ran toward Detective Carpico, bloody and screaming for help. She carried a hammer in her hands. Detective Carpico escorted S.D. to a nearby house as she described the assault to him and indicated that Appellant planned to jump in front of a trolley. As they walked along the path, Detective Carpico noticed a trolley stopped on the tracks. He learned from the trolley operator that someone had just been struck further along the tracks. Upon reaching a nearby residence, Detective Carpico telephoned 911. An ambulance transported S.D. to Children's Hospital, where she spent one night. As a result of the assault, S.D. suffered a 1.5 cm laceration to the back of her scalp, a fracture of her left orbital bone, loose teeth, and scratches on her hands.

After S.D. ran from Appellant, he walked toward the trolley tracks. Trolley operator John Johnson observed Appellant approach the tracks from a wooded area to the left of the tracks. They made eye contact. Mr. Johnson rang the bell and blew the horn to warn Appellant, but Appellant continued toward the tracks. Mr. Johnson applied the brakes and continued to ring the bell and blow the horn. Appellant walked into the path of the oncoming trolley and was struck. As a result of the impact, Appellant suffered severe injuries and has no memory of the assault.

During their investigation, police recovered Appellant's backpack on a hillside across from the trolley tracks. They obtained from or near Appellant's backpack a check for school lunches, a utility knife, a butcher's knife, and duct tape. Appellant suggested that the tools were for some remodeling work he had been helping a friend with after school.

Originally charged as an adult on December 10, 2007, the criminal court decertified Appellant's case and transferred jurisdiction to juvenile court on April 23, 2009. On May 12, 2009, Appellant was charged in a delinquency petition under the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6357, with one count of criminal attempt to commit homicide, two counts of aggravated assault, and one count of unlawful restraint. After a pre-hearing conference on May 18, 2009, the juvenile court scheduled the case for adjudication on August 24, 2009.

After three days of testimony, the juvenile court found that the Commonwealth had "proven beyond a reasonable doubt . . . the charges of criminal attempt homicide, aggravated assault causing bodily injury and unlawful restraint," and it adjudicated Appellant delinquent. N.T., 8/27/09, at 17-18. The juvenile court deferred disposition until October 6, 2009, and ordered a psychiatric evaluation.

After a lengthy dispositional hearing, the juvenile court entered an order committing Appellant to the Youth Development Center at New Castle. Order of Court, 10/6/09. On November 4, 2009, defense counsel, Patrick Thomassey, Esquire, filed an appeal of the October 6, 2009 order of adjudication and disposition on behalf of Appellant. While his appeal to this Court was pending, Appellant filed several requests for a remand to create a record on his claims of defense counsel's ineffective assistance. We granted Appellant's request on August 31, 2010, remanding for an evidentiary hearing before the juvenile court and relinquishing jurisdiction. As ordered, the juvenile court held a hearing on December 1, 2010, and denied

Appellant's claims the following month. This timely appeal followed.

Appellant presents the following questions for our consideration:

1. Did [defense] counsel render ineffective assistance in failing to take any action to have Appellant declared incompetent to stand trial and did the [juvenile] court err in failing to inquire sua sponte into Appellant's competency to stand trial where Appellant's severe brain damage completely prevented him from assisting counsel in his defense?

2. Did [defense] counsel render ineffective assistance in failing to present available evidence of Appellant's good character as he himself conceded, did the lower court manufacture a strategic reason for counsel's omission that counsel himself disavowed and which made no sense anyway, and did the lower court apply an erroneous standard of review on this claim what [sic] it found that character evidence would not have changed its fact-finding and thereby conflated its earlier role as fact-finder with its present role as post-verdict determiner of legal error?

3. Did [defense] counsel render ineffective assistance in failing to object to the trial court's error in manufacturing evidence, which the court considered dispositive, that Appellant was hit by the train after the complainant told police that he had threatened to jump in front of a train where there exists no record support for this finding, and in failing to present a more compelling case that Appellant was struck by the train before the complainant met with police?

4. Did the Commonwealth violate its discovery obligations and Appellant's due process rights under Brady v. Maryland and Giglio v. United States and their progeny by failing to disclose evidence that the complainant had retained civil counsel before trial to seek money damages from Appellant, and (in the alternative) did [defense] counsel render ineffective assistance in failing to investigate and present this evidence?

5. Did the trial court err in manufacturing evidence that Appellant threatened to kill the complainant when no such evidence was ever introduced, and was [defense] counsel ineffective for failing to object or correct the court when she relied so heavily on this mistaken understanding of the record?

6. Was the evidence sufficient to sustain the adjudication for attempted murder?

7. Did [defense] counsel render ineffective assistance in failing to object to (a) the trial court's dispositional conclusion, reached without any record support and in the face of overwhelming evidence to the contrary, that the complainant will "never heal" and that her injuries will be "long-term"; and (b) the trial court's reliance in fashioning a disposition for Appellant on the failure of his parents to express appropriate concern for the complainant?

8. With respect to the lower court's dispositional review orders, did the trial court violate the jurisdictional limitations of her dispositional authority, commit error and/or abuse her discretion by repeatedly finding that Appellant must accept the validity of the adjudication as part of his rehabilitation and treatment where at all times Appellant had permanent amnesia regarding all relevant events and was prosecuting this appeal in which he challenges the validity of that adjudication?

9. Is Appellant entitled to relief as a result of the cumulative impact of each of these errors?

Appellant's Brief at 3-4 (renumbered for ease of review; footnote omitted).*fn3 In the case at hand, Appellant raises several claims of juvenile court error and ineffective assistance of counsel.*fn4 In a juvenile proceeding, the hearing judge sits as the finder of fact. In re A.D., 771 A.2d 45, 53 (Pa. Super. 2001) (citation omitted). The weight to be assigned the testimony of the witnesses is within the exclusive province of the fact finder. Id. Our standard of review of dispositional orders in juvenile proceedings is well settled:

The Juvenile Act grants broad discretion to the court when determining an appropriate disposition. We will not disturb a disposition absent a manifest abuse of discretion. In re R.D.R., 876 A.2d 1009, 1013 (Pa.Super.2005) (internal citation omitted). Moreover, "[a] petition alleging that a child is delinquent must be disposed of in accordance with the Juvenile Act. Dispositions which are not set forth in the Act are beyond the power of the juvenile court." In re J.J., 848 A.2d 1014, 1016-1017 (Pa.Super.2004) (citation omitted).

Commonwealth v. B.D.G., 959 A.2d 362, 366-367 (Pa. Super. 2008).

With regard to ineffectiveness claims, there exists a presumption that counsel is effective, and the appellant bears the burden of proving otherwise. In re A.D., 771 A.2d at 50. Therefore:

[i]n reviewing ineffectiveness claims, we must first consider whether the issue underlying the charge of ineffectiveness is of arguable merit. If not, we need look no further since counsel will not be deemed ineffective for failing to pursue a meritless issue. If there is arguable merit to the claim, we must then determine whether the course chosen by counsel had some reasonable basis aimed at promoting the client's interests. Further, there must be a showing that counsel's ineffectiveness prejudiced Appellant's case. The burden of producing the requisite proof lies with Appellant.

Id.

Appellant's first issue contains two allegations: (1) the juvenile court erred in not raising the issue of Appellant's competence sua sponte, and (2) defense counsel was ineffective in failing to pursue a determination of incompetence based on Appellant's amnesia, which prevented Appellant from assisting with the defense. Appellant's Brief at 23. In response, the Commonwealth argues, "it is a long settled principle in Pennsylvania that amnesia alone will not be sufficient to render a defendant incompetent to stand trial." Commonwealth's Brief at 12.

Pennsylvania's definition of incompetence is statutory:

[W]henever 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 and 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). In order to establish incompetence, an appellant has the burden of proving that he was either unable to understand the nature of the proceedings against him or to participate in his own defense. Commonwealth v. Santiago, 579 Pa. 46, 67, 855 A.2d 682, 694 (2004).

We have explained the interplay between amnesia and incompetence as follows:

Absent evidence of a mental disability interfering with the defendant's faculties for rational understanding, it is settled that mere vacuity of memory is not tantamount to legal incompetency to stand trial. It is only where the loss of memory effects [sic] or is accompanied by a mental disorder impairing the amnesiac's ability to intelligently comprehend his position or to responsibly cooperate with counsel that the accused's guaranties to a fair trial and effective assistance of counsel are threatened and therefore incapacity to stand trial may be demonstrated.

Commonwealth v. Epps, 411 A.2d 534, 536 (Pa. Super. 1979) (citing Commonwealth v. Barky, 476 Pa. 602, 383 A.2d 526 (1978)). Relying on Commonwealth v. Price, 421 Pa. 396, 406, 218 A.2d 758, 763 (1966), cert. denied, 385 U.S. 869 (1966), our Supreme Court rejected claims of amnesia-based incompetence in Barky as follows:

This defendant . . . is able to comprehend his position as one accused of murder, is fully capable of understanding the gravity of the criminal proceedings against him, and is able to cooperate with his counsel in making a rational defense as is any defendant who alleges that at the time of the crime he was insane or very intoxicated or completely drugged, or a defendant whose mind allegedly went blank or who blacked out or who panicked and contends or testifies that he does not remember anything. [Price, 421 Pa. at 406, 218 A.2d at 763.]

We believe [Price] is indistinguishable from the instant case, since in both cases the defendants' amnesia affected only their memories of the alleged criminal incidents. As one commentator has stated:

"In his plight the amnesiac differs very little from an accused who was home alone, asleep in bed, at the time of the crime or from a defendant whose only witnesses die or disappear before trial. Furthermore, courts, of necessity, must decide guilt or innocence on the basis of available facts even where those facts are known to be incomplete, and the amnesiac's loss of memory differs only in degree from that experienced by every defendant, witness, attorney, judge, and venireman. How much worse off is a generally amnesic defendant on trial for murder, for example, than one who remembers all but the dispositive fact: who struck the first blow?" 71 Yale L.J. 109, 128 (1961).

We do not believe that [Barky's] amnesia alone denied him either the effectiveness of counsel or the opportunity to present a defense.

Barky, 476 Pa. at 606, 383 A.2d at 527-528.

Here, the juvenile court addressed Appellant's competence challenge in its post-evidentiary hearing opinion as follows:

Memory loss does not automatically render a defendant incompetent to stand trial. [A] defendant who, prior to trial, sustained head injury that allegedly impaired his memory was competent, since test for competency did not require a good memory, but rather, only a memory sufficient to permit a reasonable degree of rational understanding of the proceedings.

U.S. v. Vanasse, 48 Fed.Appx. 30, C.A. 3 (Pa.) 2002.

On May 18, 2009, [A]ppellant appeared before me for a pre-hearing conference. There was no request for the court to hold a competency hearing or to cause him to submit to an evaluation to assess his competency to stand trial. There was nothing about [A]ppellant's demeanor that would have caused me to address or question his competence. Despite the injuries that he sustained nearly twenty-two months earlier, [A]ppellant ambulated into the courtroom without difficulty and appeared to have a normal degree of control over his person.

Evidence in the delinquency petition was presented to the court over a three-day period. During the trial, [A]ppellant sat alongside his attorney and spoke and responded to his attorney. I did not observe [A]ppellant display any unusual behavior that would cause me to believe that his physical injuries prevented him from assisting counsel in his defense. Appellant's physical injuries, which he sustained nearly twenty-two months before the trial in juvenile court, were, in and of itself, insufficient to place me on notice that he could not assist counsel in his defense. While I certainly am permitted, sua sponte, to order an evaluation to assess a juvenile's competence to stand trial, I am not required to do so, in the absence of evidence that it is needed. In this case, I was aware that [A]ppellant had been evaluated by two mental health professionals for the transfer hearing. Additionally, [A]ppellant was represented by counsel, who did not request such an evaluation and did not complain that [A]ppellant was unable to assist him in his defense.

After the conclusion of the evidentiary hearing and arguments by counsel, I found that [A]ppellant was competent to stand trial. Specifically, I found that [A]ppellant had no memory of the assault due to his traumatic head injuries. However, memory loss alone does not render a defendant incompetent to stand trial. In this case, I found that [A]ppellant, who possessed superior intelligence had the capacity to understand the charges against him, to review and understand police reports and other discovery materials, to comprehend the testimony of the various witnesses, and to assist his lawyer in his defense. Appellant's case is similar to that of defendants who commit crimes during a blackout stage, while under the influence of drugs or alcohol. While they may have no memory of the incident in question, they can review the reports and ...


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