Commonwealth v. Bruno

Dissenting Opinion by

Mr. Justice Roberts:

I am compelled to dissent from the majority’s determination that evidence which would be inadmissible against appellant at a trial by virtue of Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 (1966), and Escobedo v. Illinois, 378 U.S. 478 , 84 S. Ct. 1758 (1964), can nonetheless be used in a proceeding the result of which is to institutionalize appellant against his will because he is “incompetent to stand trial.” I also believe that the Commonwealth cannot force a competency hearing on an accused who wishes to go to trial.

Although in general a claim of incompetency to stand trial will come from an accused, here it must be remembered that appellant has continued to resist the Commonwealth’s efforts to not try him. His psychiatric condition has been raised, not by him, but by the Commonwealth. Cf. State v. Obstein, 52 N.J. 516 (1968). As a result, the Commonwealth now claims that it can use evidence to deprive appellant of his freedom through commitment that could not be used to deprive him of his liberty at a trial on the merits of the case. It should be quite clear then that the majority’s statement that “the evidentiary restrictions advocated by the appellant . . . would unnecessarily impede a diagnosis . . . which would be of detriment to the accused as frequently as it would be a detriment to the prosecution” is illogical. Appellant *224 here does not want an adjudication of his competency. If he did, he would suffer no detriment, for he would not raise any Miranda or Escobedo claims to prevent the use of evidence which he wanted to introduce and would not object to the Commonwealth’s use of such evidence in the unlikely event that it was favorable to him.

In the main, the majority rejects appellant’s claim because it finds that the competency hearing is not a “criminal proceeding.” I would have thought that Application of Gault, 387 U.S. 1 , 87 S. Ct. 1428 (1967), would have put to rest once and for all the simplistic notion that deprivation of constitutionally proscribed rights could be achieved by labelling, or rather mislabelling, a proceeding as “non-criminal,” but the majority here proves that the ghost still walks the land. In Gault, of course, the Supreme Court of the United States held that the characterization of juvenile proceedings as being aimed only at the child’s best interests was insufficient to overcome the realities of the situation. An examination of the institution involved here reveals a striking similarity between it and the institution which Gault held could not be considered noncriminal for constitutional purposes.

The Court in Gault, quoting the dissenting opinion of Mr. Justice Musmanno in Holmes’ Appeal, 379 Pa. 599, 616 , 109 A. 2d 523, 530 (1954), stated that the juvenile is placed in “a building with whitewashed walls, regimented routine and institutional hours. . . .” 387 U.S. at 27 , 87 S. Ct. at 1443 . We need not argue with the majority’s determination that Farview, where appellant was sent, is not “equivalent to a prison” to find that it is close enough to be as objectionable as the institutions involved in Gault and Holmes. Staff members at Farview not only have recognized that “bars, guards, and routine” are a significant part of *225 the atmosphere of the institution; they have claimed that these factors are helpful in rehabilitation! 110 U. Pa. L. Rev. 78 , 86 (1961).

The Supreme Court in Gault did not require as does the majority here that the institution to which juveniles were sent be “tantamount to a prison sentence.” It was sufficient that the institution had the characteristics that are present at Farview. Once this was the case, constitutional guarantees attached just as if there had been the usual trial.

Even apart from Gault, it is sheer fantasy to suggest that appellant is not now locked in Farview as a result of a criminal proceeding. Appellant was charged with and indicted for crimes. He was before the court which instituted competency proceedings as a direct result of those charges. Obviously competency to stand trial is not at issue unless there is contemplated a trial for which the accused may have to stand.

The fact of the crime and the type of crime is relevant to the way appellant may be handled once institutionalized. For example, one study of Farview indicates that “public fear and outrage” resulting from “atrocious acts” influences the hospital staff, perhaps creating “more stringent release standards to certain patients, in order to satisfy public vengeance. . . .” 110 U. Pa. L. Rev. 78 , 94 (1961). Furthermore, the time which an individual spends in Farview will be thought of as “punishment” and frequently neither prosecuting authorities nor the public will press for further incarceration if the accused is released. Id. at 104 .

The fact that appellant has been deprived of his liberty and incarcerated as a result of a competency hearing which is an adjunct of a criminal proceeding causes him to be treated differently than civil committees under the Commonwealth’s mental health stat *226 utes. Under prior law, civil committees were allowed to readjust to the outside world through prerelease trial visits, but this procedure was not available to the “criminally insane” at Farview. Id. at 86 . Under the Mental Health and Mental Retardation Act of 1966 the distinction is even more striking. A person, like appellant here, who is charged with a crime, detained in a penal institution and then committed can receive outpatient care under “conditions as the court [to whom application for the treatment is made], may direct, including the entry of bail. . . .” Act of October 20, 1966, P. L. 96, §408, 50 P.S. §4408 (Emphasis added.) In contrast, under §4406, there is no provision for court imposed conditions or the imposition of bail where persons under civil commitment are concerned. To conclude that a hearing which results in a situation where an individual cannot receive certain mental treatment without posting bail is not a “criminal” proceeding is completely unrealistic.

It is perfectly clear that appellant is being sent to an institution that has the trappings of a prison. The time he spends there, his potential for release, and the possibility of further incarceration are all influenced by the widely held opinion that his tenure in the institution is at least to some extent “punishment.” To receive outpatient care, he may have to post bail, a procedure unique to the criminal process. And he has been committed under a procedure which applies only to those who are m the criminal process because they are charged with a crime. I believe that appellant’s competency hearing was indeed part of a “criminal proceeding” and as a result he was entitled to the constitutional protections and evidentiary rules established in Miranda and Escobedo .

Turning to appellant’s next claim, while I am not prepared to go as far as Mr. Justice O’Bbien, who be *227 lieves that it is violative of due process to require an accused to choose between competency proceedings and a trial, I nonetheless do not believe that the Commonwealth may do what it has done in this case by imposing competency proceedings on appellant against his will. It must be remembered that this is not the usual case, where an accused himself raises his own incompetency, in an attempt to postpone or eliminate his trial. Here appellant has requested a trial, but the Commonwealth has forced the competency proceeding on him.

Certainly there is considerable substance in the fear that a prisoner may be greatly prejudiced by the trial delay engendered by his institutionalization. This danger is of course one of the main thrusts of the sixth amendment’s speedy trial requirement. Furthermore, the accused must live under the threat of the indictment that continues to hang over him. As justification for this, the Commonwealth argues in effect that the competency proceeding is in appellant’s own best interests.

This claim, I believe, misses the point of the competency hearing. In practically all cases, a competency hearing will be used to test the validity of an accused’s claim that he should not stand trial. It is a sanity hearing, and cannot completely answer the question of the extent to which an accused is capable of proceeding with his case. “. . . [A] claim of trial incapacity brings into question the ability of the accused to consult effectively with his lawyer and to supply him with information relevant to the matter charged and his involvement, if any, in it. Dusky v. United States, 1960, 362 U.S. 402 .” United States ex rel. Roberts v. Yeager, 402 F. 2d 918, 919 (1968).

Here however the determination that appellant could stand trial has been made by his own attorney *228 who has spent considerable time with appellant preparing a case. I agree with Mr. Justice O’Brien’s conclusion that whatever infirmity from which a defendant may suffer does not also affect his counsel, and that where there is a competency question, the court can always appoint an amicus counsel to protect a defendant who refuses an attorney. I would much prefer that an accused be protected by the opinion of his own attorney, or one appointed to protect him, than by the rather surprising solicitude of the prosecution in this case. Allowing the prosecution to raise appellant’s competency to deprive appellant of his right to an immediate trial places the Commonwealth in the position of being an advocate, opposed to appellant, who can affect appellant’s trial position by masquerading as appellant’s benefactor.

The prosecution’s actions here raise, in my opinion, a general due process problem, in addition to the speedy trial violation. The prosecution has taken a position contrary to the position it would normally be expected to take. Having charged appellant with a crime, it is now in effect telling him how to conduct his defense while continuing to act as advocate for the Commonwealth. Once appellant has been charged with a crime, it is no longer the Commonwealth’s concern how he conducts his trial, cf. State v. Obstein, supra; it is grossly unfair for the Commonwealth to skewer appellant on the point of one of his own potentially available defenses, and in my view this cannot be permitted under our theories of due process.

It is no answer that appellant may be dangerous to society should he be acquitted and not institutionalized. There is still ample opportunity to have appellant civilly committed. See 50 P.S. §4406 (commitment proceeding can be brought by “any responsible person,” as well as by certain government agencies). *229 Under those circumstances he would not be committed subject to the criminal commitment limitations and restrictions discussed earlier. This is exactly to what appellant should be entitled if he goes to trial and is not convicted. (If appellant is acquitted by reason of insanity, the new Mental Health Act dictates that this commitment, if any, be under the civil commitment procedures of §4406, 50 P.S. §4413.) I do not believe that an accused should be stigmatized as a criminal and subjected to procedures for treating the criminally insane when he, on advice of Ms own counsel, would be willing to proceed to trial despite any infirmity from which he may be suffering. It is not for the Commonwealth to interfere with his desires as to the conduct of his legal affairs.

Accordingly I dissent from the majority’s determination. Since I believe that the competency hearing was impermissible when appellant wished to go to trial, I would vacate and remand for a trial on the merits of the alleged offenses. And even were the competency hearing permissible under these circumstances, I believe that its determination here was invalid if it utilized evidence in violation of Miranda and Escobedo .