J. A26026/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
DAVON ANTHONY HAIRSTON,                 :         No. 444 MDA 2015
                                        :
                       Appellant        :


        Appeal from the Judgment of Sentence, November 22, 2013,
             in the Court of Common Pleas of Dauphin County
             Criminal Division at No. CP-22-CR-0004751-2011


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED SEPTEMBER 22, 2015

     Davon Anthony Hairston appeals from the judgment of sentence of

November 22, 2013, following his conviction of robbery, aggravated assault,

simple assault, terroristic threats, reckless endangerment of another person,

burglary, theft by unlawful taking, and criminal conspiracy.1 We affirm.

     The trial court summarized the facts and procedural history as follows:

                 The charges in this matter arose from an
           incident that took place on September 20, 2011,
           when [appellant] and three other men entered an
           occupied apartment for the purpose of robbing the
           residents. The intruders used a crowbar to assault
           two of the men and threatened all of them with a
           gun. Money, electronics, wallets and other personal
           belongings were taken.

* Senior Judge assigned to the Superior Court.
1
 18 Pa.C.S.A. §§ 3701(a)(1)(i); 2702(a)(4); 2701(a)(3); 2706(a)(1); 2705;
3502(a); 3921(a); and 903(c), respectively.
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                     [Appellant] is currently incarcerated after being
              convicted by a jury following a trial held
              September 16-19, 2013, on the charges of Robbery,
              Aggravated      Assault,    Burglary    and     Criminal
              Conspiracy.         Appellant    was    sentenced     on
              November 26, 2013, to an aggregate term of
              incarceration of eighty-four (84) to one hundred
              sixty-eight (168) months.        No direct appeal was
              filed.

                     On October 10, 2014, [appellant] filed a
              Petition under the Post-Conviction Relief Act[2]
              (“PCRA”) for which this Court appointed counsel. In
              his    Petition,  [appellant]    claimed      ineffective
              assistance of counsel. In his Petition, he stated that
              he had directed trial counsel to file a direct appeal to
              the Pennsylvania Superior Court but one was not
              perfected.

                    PCRA counsel filed a Petition requesting the
              reinstatement of his direct appeal rights nunc pro
              tunc or, in the alternative, that an evidentiary
              hearing be held to establish a factual record upon
              which to dispose of his Petition. The Commonwealth
              filed [a] response and on January 22, 2015, this
              Court held a hearing on the matter. Based on the
              facts presented at the hearing, this Court entered an
              order on February 10, 2015, reinstating [appellant’s]
              right to file a direct appeal nunc pro tunc. On
              March 10, 2015, a timely Notice of Appeal to the
              Pennsylvania Superior Court was filed.

Trial court opinion, 7/2/15 at 1-2.

        Appellant has raised the following issue for our review, challenging the

trial court’s decision to not order a psychiatric examination of appellant.

              Whether the [trial] Court erred as a matter of law by
              failing to order a psychiatric evaluation to determine
              whether Appellant was competent to stand trial?

2
    42 Pa.C.S.A. §§ 9541-9546.


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Appellant’s brief at 6.

      A defendant is presumed competent to stand trial. Commonwealth

v. Brown, 872 A.2d 1139, 1156 (Pa. 2005) (citation omitted). Specifically,

our supreme court has stated that,

             [c]ompetency to stand trial is measured by the
             relationship between counsel and client:       to be
             deemed competent, the defendant needs to have the
             ability to consult with counsel with a reasonable
             degree of understanding, in order to participate in
             his defense, and he must be able to understand the
             nature or object of the proceedings against him.

Commonwealth v. Blakeney, 108 A.3d 739, 752 (Pa. 2014); 50 P.S.

§ 7402(a).

      The trial court is only required to order a competency hearing if there

“is reason to doubt the defendant’s competency.”          Commonwealth v.

Uderra, 862 A.2d 74, 88 (Pa. 2004).        This is determined by whether the

defendant can make a prima facie showing of incompetence.              50 P.S.

§ 7402(d); Commonwealth v. duPont, 681 A.2d 1328 (Pa. 1996).                The

trial court’s decision to not hold a competency hearing can only be disturbed

by an appellate court upon a finding that the trial court abused its discretion.

Commonwealth v. Santiago, 855 A.2d 682, 693-694 (Pa. 2004) (citations

omitted).

      Appellate courts have consistently found that the trial judge is best

equipped to make the determination on whether a competency hearing is

required because the trial judge has the ability to observe the defendant


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throughout the entire trial, and can thus come to an appropriate decision as

to whether a competency hearing is necessary.          Commonwealth v. Flor,

998 A.2d 606, 617 (Pa. 2010) (citations omitted).           Should the trial court

order a competency hearing, a defendant has the burden of proving that he

or she is incompetent to stand trial by a preponderance of the evidence.

Brown, 872 A.2d at 1156.

        The trial court in the instant case denied appellant’s request for a

competency hearing based on the trial judge’s observation that appellant’s

behavior and demeanor lacked sufficient evidence to establish a prima facie

case that appellant was incompetent to stand trial. First, the trial court did

not note any instances either before or during the trial where appellant did

not possess a full knowledge and appreciation of the proceedings, or the

ability to reasonably assist in his own defense.      Appellant demonstrated a

reasonable comprehension of the proceedings upon being colloquied by the

trial court when appellant elected not to testify in his own defense. As the

trial   court   noted,   appellant   “was   quite   adept   at   navigating   [the]

post-conviction legal system pro se through a series of letters to [this court]

and [the] Court of Common Pleas and the filing of a PCRA Petition which

ultimately resulted in [the instant appeal].” (Trial court opinion, 7/2/15 at

6 n.5.)

        Second, appellant failed to make a prima facie case demonstrating

the need for a competency hearing.            Defense counsel made only two



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references to appellant’s incompetence to stand trial. On the second day of

the proceedings, and after the jury was empaneled and sworn, but before

opening statements, defense counsel requested a competency hearing

because appellant urinated on himself in the presence of the jury two days

earlier. (Notes of testimony, 9/18/13 at 12-13.) Defense counsel also told

the trial court that he was just recently made aware that appellant had a

“mental health history and [a Social Security disability 3 (“SSD”)] diagnosis.”

(Id.)

        Defense counsel’s only other reference to appellant’s mental health

and receipt of SSD benefits came during a cross-examination of one of the

original co-defendants, Bryant Henry. Counsel asked Henry if he was aware

that appellant was “slow,” receiving SSD, and taking special education

classes. (Id. at 54.) At no point throughout the trial did defense counsel

cite any specific diagnosis of a mental health disorder, nor did he provide the

reason that appellant was receiving SSD benefits.

        These circumstances are similar to those presented in Uderra. There,

defense counsel cited the fact that his client was placed on suicide watch in

jail (without providing any further explanation) and his client’s reaction to

the jury finding him guilty in a first-degree murder trial as reasons for the



3
  As the trial court notes, SSD benefits may be granted for a myriad of
reasons aside from mental health issues that would warrant a finding of
incompetency to stand trial. (Trial court opinion, 7/2/15 at 5-6; see also
42 U.S.C. § 423(d).)


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trial court to grant a competency hearing.        Uderra, 862 A.2d at 88.

Specifically, our supreme court stated that “an unexplained temporary

placement on jail suicide watch and an impulsive physical act in response to

his conviction of first-degree murder are insufficient to bring competency on

such terms into question.” Id. Our supreme court also observed that at no

point during the post-conviction phase did the defendant “[attempt] to

supplement his proofs with a proffer of expert evidence concerning his ability

at trial to understand the proceedings and assist in his defense.” Id.

      Likewise, in the instant case, an isolated incident coupled with a vague

assertion of mental health issues and knowledge that appellant receives SSD

benefits does not establish a prima facie case that appellant was

incompetent to stand trial.    Moreover, the trial court appointed defense

counsel to represent appellant on November 4, 2011. (Docket #4-24 at 9.)

Over a course of representation that lasted nearly two years before the jury

was sworn on September 16, 2013, defense counsel never filed a motion

requesting a competency hearing, nor did counsel ascertain that appellant

had mental health issues and was receiving SSD benefits. Similarly, at no

point after the trial did appellant attempt to offer any expert testimony

indicating that he was incompetent to stand trial, nor did he even offer any

specificities as to what mental health issues he had or why he was receiving

SSD benefits.




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     The record also indicates that appellant demonstrated an ability to

consult with counsel and an understanding of the proceedings through his

decision to waive his right to testify in his own defense.      (Notes of

testimony, 9/18/13 at 123-126.)       The trial court conducted a colloquy

outside of the presence of the jury in which the court was satisfied that

appellant had waived his right to testify in a knowing, voluntary, and

intelligent manner. See Brady v. United States, 397 U.S. 742, 748 (1970)

(“Waivers of constitutional rights not only must be voluntary but must be

knowing, intelligent acts done with sufficient awareness of the relevant

circumstances and likely consequences”). A review of the colloquy does not

demonstrate that appellant lacked a sufficient understanding and awareness

of the proceedings or of the consequences of his decision not to testify.

Therefore, appellant was sufficiently able to consult with counsel and

retained an understanding throughout the entire proceedings.

     Appellant has failed to establish a prima facie case that he was

incompetent to stand trial, requiring a competency hearing; and the trial

court did not abuse its discretion by denying appellant’s request for a

competency hearing.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2015




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