Commonwealth v. Bruno

Concurring Opinion by

Mr. Justice Pomeroy :

While I subscribe to the opinion of Mr. Justice Eagen, speaking for the Court, I feel constrained, in light of the dissenting opinions, to mention additional considerations which have led me to this conclusion. The division of opinion relative to this appeal is not because of a conflict, or supposed conflict, between the rights of the accused on the one hand and the rights of society on the other, but because of disagreement concerning the interaction of two rights of the accused individual; the right to a fair trial, on the one hand, and the right to a speedy trial on the other, both of which are guaranteed by both the Federal Constitution and the Constitution of Pennsylvania.

*209 In this case the Sanity Commission, duly established under The Mental Health Act of 1951, Act of June 12, 1951, P. L. 533, Art. III, §327, as amended, 50 P.S. §1202, and composed of two qualified psychiatrists and a competent lawyer, filed its report, consisting of 16 typewritten pages, concluding that the defendant is mentally ill as defined in The Mental Health Act, incompetent to stand trial, and of criminal tendency stemming from his mental illness. More specifically, the Commission was of the opinion that the defendant “is now and has been in the past suffering from chronic paranoid schizophrenia which has existed for a number of years”, and that his criminal tendency stems from his mental illness, “as shown by his belief that only by eliminating suspected people can he and his family be protected . . . [I]f no relief is forthcoming after the elimination of certain suspected persons he will have to seek other suspects.” The report concluded with the finding that the defendant “does not have a sufficient present ability to consult with his counsel with a reasonable degree of rational understanding, nor does he have a rational and factual understanding of the proceedings flowing from the criminal charges lodged against him.”

The findings of the Commission were adopted by the Court.

By the petition for a writ of habeas corpus, in which it is claimed that the order of commitment based on this report constitutes a violation of defendant’s right to a jury trial and that he is being unconstitutionally deprived of his liberty, the lower court is asked, in effect, to ignore the report of the Commission and its own findings based thereon, revoke the commitment order, and proceed to the trial of the defendant for murder. One can imagine the charges of violation of due process that would be made if this petition were granted and a conviction resulted.

*210 The appellant cites the statement of the Supreme Court of the United States in Pate v. Robinson, 383 U.S. 375 , 15 L. Ed. 2d 815 (1966), to the effect that Robinson was “constitutionally entitled to a hearing on the issue of his competency to stand trial.” This is true, of course, and was adhered to in the present case. In the Pate opinion, the Court further said, citing Bishop v. United States, 350 U.S. 961 , 100 L. Ed. 835 (1956), “The State concedes that the conviction of an accused person while he is legally incompetent violates due process, and that state procedures must be adequate to protect this right.”

The dissenting opinions, however, point out that in this ease the defendant wants his trial and cannot be said to have waived it; the Sanity Commission was the State’s doing, not his. If the Sanity Commission is correct in stating that the defendant is without ability to consult with his counsel with a reasonable degree of rational understanding, it is difficult to conclude that defendant can intelligently advise counsel with rational understanding that he desires to be tried. We note, in passing, that it was the lawyer and not the defendant who verified the petition for the writ of habeas corpus. There is a danger, it seems to me, of confusing zealous and able counsel with the client in a case of this sort.

It is said, again, that the incarceration in Farview Hospital is but a substitute for imprisonment following conviction, and might postpone appellant’s trial indefinitely. This overlooks, it seems to me, two important points. The first, that the right to a speedy trial, like all other rights, is nut absolute and automatic; it means speedy under the circumstances. As the Supreme Court of the United States has well stated, “ ‘The right of a speedy trial is necessarily relative. It is consistent with delays and depends on circum *211 stances. It secures rights to a defendant. It does not preclude the rights of public justice.’ Again, ‘Whether delay in completing a prosecution . . . amounts to an unconstitutional deprivation of rights depends upon the circumstances . . . The delay must not be purposeful or oppressive.’ ‘[T]he essential ingredient is orderly expedition, and not mere speed.’ ” United States v. Ewell, 383 U.S. 116, 120 , 15 L. Ed. 2d. 627, 630 (1966), as quoted in Hodges v. United States, 408 F. 2d 543, 549 (8th Cir. 1969).

The Hodges case involved a delay due to pretrial commitment for determination of competency. The result of psychiatric examination was that the defendant was competent. Following the Ewell guidelines, the 8th Circuit Court of Appeals, on appeal from a conviction of counterfeiting, held that the Sixth Amendment’s guarantee of a speedy trial had not been violated. The Court paid particular attention to the first safeguard, “to prevent undue and oppressive incarceration prior to trial”, and held that under the circumstances, the four months of incarceration involved in Hodges because of the incompetency issue was not “undue and oppressive”. The Circuit Court singled out the third safeguard, viz., “to limit the possibilities that long delay will impair the ability of an accused to defend himself”, as most important. This is properly of concern to the dissenting justices here, but of no less concern to the majority.

A second important point ignored by the dissents is that the Mental Health and Mental Retardation Act of 1966, Act of October 20, 1966, Spec. Sess. No. 3, P. L. 96, §423, 50 P.S. §4423(7), provides a statutory procedure expressly designed to insure that a trial will not be delayed because of unwarranted detention. 1 This sec *212 tion provides that after the findings of the Sanity Commission, the committed person has the right to request that the Department of Public Welfare arrange for examination of his mental condition by a physician not associated with the Department. This request must be granted by the Department for the first time after six months’ hospitalization, and can be demanded as often as once a year thereafter. Moreover, any committed person may petition for a writ of habeas corpus on the affidavit of a physician that in his opinion the person is no longer mentally disabled, or that his mental disability does not require care or treatment in a hospital facility, and in such proceeding the burden of proof rests upon the director responsible for the continued detention of the accused. Ibid, §426, 50 P.S. §4426 (b) (2). Thus, in this case, Bruno has a readily available procedure, for he may, periodically and frequently, have a recheck of his mental competence to stand trial. He is not indefinitely confined without any recourse.

Mr. Justice Roberts notes, in his dissent, that under the Mental Health and Mental Retardation Act of 1966, a person in appellant’s position must post bail if directed by the Court, in order to receive out-patient care, and argues that this fact labels the proceeding as criminal. There is no question, of course, that commitment under these circumstances is an adjunct to a criminal proceeding; therefore, the requirement that the accused post bail before being allowed to leave State custody is appropriate. He would have to do the same if there were no question about his mental competence and he wished to secure pretrial freedom. Being out on bail, whether or not committed for incompetency, has no bearing on the issue of guilt.

*213 It may well be that society has not yet reached the right answer in the handling of persons who are both criminally accused and found to be mentally incompetent, and to have criminal tendencies. Better methods may, and perhaps need to be, devised to accommodate the competing claims of fair trial and speedy trial in these situations. It does not follow, however, that a person in such an unfortunate position should be able to demand, on the one hand, a speedy trial and if his request is granted and conviction results, to charge, on the other hand, that he was denied a fair trial because he was tried when he was incompetent to defend himself. If there is to be fairness, there cannot be speed, in any absolute sense; if a trial is to be speedy, in an absolute sense, it will not be fair. The statutes of Pennsylvania, and the lower court in acting upon them, have endeavored to protect both rights of the defendant. This process, like any other, may be subject to abuse, but such abuse is not disclosed by the record before the Court in this case. The suggestions of malevolent motivation on the part of the Commonwealth are not justified.

Mr. Chief Justice Bell and Mr. Justice Jones join in this opinion.

This Act became effective January 1, 1967, repealing all inconsistent provisions of Tbe Mental Health Act of 1951. As of *212 July 1, 1969, the latter Act was repealed absolutely. 50 P.S. §4701 (a). Similar provisions as to release were contained in The Mental Health Act of 1951, as amended, supra. See Com. ex rel. Wolenski v. Shovlin, 419 Pa. 35 , 213 A. 2d 327 (1965).