J-A12034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    ALBERT DIPRIMEO                            :
                                               :
                       Appellant               :   No. 2565 EDA 2016

            Appeal from the Judgment of Sentence February 29, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0013858-2014


BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

CONCURRING MEMORANDUM BY BOWES, J.: FILED NOVEMBER 05, 2018

       In his Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal, Appellant raises a standard claim that his plea was invalid. Had he

articulated an ineffective assistance of counsel claim, I would agree with my

esteemed colleagues that it should be deferred to collateral review.1 At its

essence, however, Appellant’s claim is that he was incompetent to plead guilty

due to mental illness, which the trial court found waived because Appellant

did not object at the plea hearing or file a motion seeking to withdraw his plea

on that basis.




____________________________________________


1 I suspect that Appellant’s reframing of the issue on appeal as one of
ineffective assistance of counsel was an attempt to avoid the trial court’s
waiver finding.
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      In agreeing with the trial court’s waiver finding, and deferring the

ineffective assistance of counsel issue to collateral review, my colleagues rely

upon Commonwealth v. Lincoln, 72 A.3d 606 (Pa.Super. 2013), for the

proposition that in order to preserve a challenge to the validity of a guilty plea,

a defendant must either object during the colloquy or file a post-sentence

motion to withdraw the plea. The rationale for requiring that action is that

the court accepting the plea should be afforded the opportunity to consider

and correct any error that may have been committed. Id.

      I submit that, while that rationale is served when attacking the validity

of a plea, here we are reviewing the mental competency of an accused. We

have held that competence is “an absolute and basic condition of a fair trial,”

and that “the conviction of an accused person while he is legally incompetent

violates due process.” Commonwealth v. Bruno, 255 A. 2d 519, 522 n.1

(Pa. 1969) (quoting Pate v. Robinson, 383 U.S. 375, 378 (1966)).

      Hence, I depart from my colleagues in their affirmance of the trial court’s

finding that the issue of Appellant’s competency was waived due to his failure

to file a motion to withdraw the plea. Our courts have consistently held that

mental competency to participate in a proceeding is not waivable and can be

considered whenever raised.      See Commonwealth v. Higgins, 424 A.2d

1222, 1225 (Pa. 1980); see also Commonwealth v. Tyson, 402 A.2d 995

(1979) (holding mental competency claim shielded from judicial waiver

principles by “relaxed waiver” rule governing direct appeal review of such


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claims); Commonwealth v. Marshall, 318 A.2d 724, 727 (Pa. 1974) (finding

no waiver where counsel failed to raise appellant’s mental competency prior

to or during trial).

      In Commonwealth v. Brown, 872 A.2d 1139 (Pa. 2005), our High

Court reaffirmed the position in Commonwealth v. Santiago, 855 A.2d 682,

691-92 (Pa. 2004) (plurality), that in a PCRA, it could reach the issue of a

petitioner’s alleged incompetency at trial even though he failed to raise it at

trial or on direct appeal. In Santiago, the plurality cited the direct appeal

cases finding no waiver, and pronounced that mental competency claims are

an exception to the statutory command that issues not raised at trial or on

appeal are waived under the PCRA. While acknowledging that usually a claim

that is not raised below or on direct appeal is waived, the Brown Court

reiterated the holding in Marshall, supra, that the issue of whether a

defendant was competent to stand trial was an exception to the waiver rule.

The Court also cited the reasoning of the United States Supreme Court in

Pate, supra at 384, that it was “contradictory to argue that a defendant may

be incompetent, and yet knowingly and intelligently ‘waive’ his right to have

the court determine his capacity to stand trial.” Brown, supra at 1153.

      Based on the foregoing authority, I believe the issue of Appellant’s

competency to enter a plea was not waived.          The test for determining

competency to enter a plea is whether the defendant “had the opportunity at

the appropriate time to consult with counsel, understand counsel’s advice and


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information and understand the nature of the pending criminal proceedings

against him.” Commonwealth v. Smith, 469 A.2d 1104, 1107 (Pa.Super.

1983) (citing Commonwealth v. Scott, 414 A.2d 388 (Pa.Super. 1979), and

Marshall, supra). Since the determination of competency is a matter for the

sound discretion of the trial court, we may not disturb that finding absent a

clear abuse of that discretion. Commonwealth v. Frey, 904 A.2d 866, 872

(Pa. 2006).

      The record reveals that Appellant’s mental health status came under

scrutiny immediately following his arrest.    One week following Appellant’s

arrest, the court ordered a mental health evaluation to determine whether he

was competent to stand trial. He was deemed incompetent and detained for

sixty days in the Philadelphia Detention Center. Dr. Miles Ladenheim, M.D.,

J.D., a court-appointed forensic psychiatrist, opined in his September 9 and

October 13, 2014 reports that Appellant was incompetent to stand trial,

concluding that his “rapid [and] pressured speech, racing thoughts, flight of

ideas, grandiose ideations and marked difficulty redirecting him back to the

focus of the topic under discussion” precluded him from “having a sufficient

present ability to consult with an attorney with a reasonable degree of rational

understanding.”    Appellant’s brief at Exhibit C.   Dr. Ladenheim’s opinion

changed in his November 11, 2014 report.       He noted that Appellant could

understand the proceedings, and participate and assist in his defense, and

was thus competent to stand trial as long as he continued to receive treatment


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and medications. Mental Health Report, 11/11/14, at 4. Appellant’s public

defender   disagreed   with    that   assessment,   however,    and     Appellant’s

commitment was extended by agreement. On November 21, 2014, Appellant

was deemed competent, and at a later proceeding, he was held for court.

      Six months later, on July 20, 2015, Appellant entered into the

negotiated guilty plea. At the guilty plea colloquy, when asked by the Court

whether he had been or was currently being treated for any mental illness,

Appellant responded, “No.” N.T., 7/20/15, at 3. He also denied that he was

under the influence of any medication or drugs.           Id.   Nonetheless, he

acknowledged that he had reviewed the guilty plea colloquy form with his

attorney, that he understood the elements of the charges to which he was

pleading guilty, and that he was foregoing his right to a jury trial.

      After the Commonwealth’s attorney placed on the record the basis for

the plea, defense counsel corrected her client’s responses to the colloquy

regarding his mental health:

      My client, in fact, has been diagnosed with mental health issues
      from our Mental Health Unit. He was initially incompetent on this
      matter. So I just want to clarify the record. When he was
      evaluated in September – the report dated September 29, 2014
      had my client as not competent. And the report of October 24,
      2014 had him as not competent. He was subsequently evaluated
      with a report date of November 11, 2014, at which point he was
      deemed competent. I have represented my client almost since
      the very inception of this case, and it is my belief that my client is
      absolutely competent and, in fact, does understand everything
      that’s happening in court. He has understood all of my visits to
      him, all of our conversations. I was there yesterday, Sunday, July



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       19th, for quite some time to visit with him, and I believe he was
       competent and was able to engage fully with me at that time.
Id. at 4.
       Following counsel’s representation, the court asked Appellant how he

pled, and he responded, “Guilty.”              The court accepted the plea, implicitly

finding him competent despite his history of mental illness. Appellant, through

counsel, waived a presentence investigation, and he was sentenced on some

of the charges.      Sentencing was deferred on the attempted rape charge

pending assessment by the Sexual Offender Assessment Board.                 Appellant

was advised that he had ten days to file a motion to reconsider, and thirty

days to file an appeal. Id. at 10-11.2 On February 29, 2016, the negotiated

sentence of ten to twenty years imprisonment was imposed on the attempted

rape charge via a video conference with Appellant.

       Based on the record, I would reach the merits of the competency issue

and affirm the judgment of sentence. According to the psychiatric evaluation,

as well as counsel’s representation, Appellant had sufficient ability at the time

he entered the plea to “consult with counsel, understand counsel’s advice and

information and understand the nature of the pending criminal proceedings

against him.” Smith, supra at 1107. Thus, I believe the record supports a

finding that he was competent to enter the plea.


____________________________________________


2 Appellant was not advised either at the plea hearing or the February 29,
2016 sentencing on the attempted rape charge, that he could file a post-
sentence motion to withdraw his guilty plea.

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     For these reasons, I concur in the result only.




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