J-S13012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LARRY J DEAN                               :
                                               :
                       Appellant               :   No. 667 WDA 2018

              Appeal from the Judgment of Sentence April 9, 2018
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000571-2017


BEFORE:      BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

CONCURRING STATEMENT BY OTT, J.:                   FILED SEPTEMBER 26, 2019

        I agree with President Judge Emeritus Bender’s conclusion that Dean is

not entitled to relief regarding the denial of his earlier request for a

continuance.     However, I disagree that the trial court properly denied the

continuance request regarding the desire to have an additional mental health

evaluation. Nonetheless, I believe that error proved harmless.

        A mental health expert, Dr. Louis S. Martone, examined Dean and could

not arrive at a medically conclusive opinion that Dean was competent to stand

trial. Dr. Martone recommended additional formal neurological testing.

        The trial court denied that request, based in large part on Dean’s

responses to a colloquy explaining his decision not to attend voir dire. The

trial court determined that the symptoms Dean related, “did not stem from

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S13012-19



the sort of psychological disorder that may render one unable to aid in his own

defense.” Trial Court Opinion at 2. The basis for this is unclear. Without

knowing this basis, the trial court’s determination appears to be an

unsupported lay medical opinion.

      Additionally, the trial court defended the ruling based upon its

observations of Dean during trial. I believe it is inappropriate in the instant

circumstance to justify a ruling denying a mental health continuance request

on facts that were unknown at the time of the ruling.

      However, the trial court’s observations of Dean during the trial are

relevant to the determination as to whether Dean suffered prejudice from the

improper denial of his mental health continuance request. Here, the trial court

noted, “[e]ven throughout four very long and arduous days of trial, … [Dean]

showed no signs of incompetency such that a continuance was necessary to

allow for additional testing beyond Dr. Martone’s evaluation.”       Trial Court

Opinion at 2.

      I believe Dr. Martone’s inability to provide a conclusive medial opinion

was sufficient cause to allow for a continuance for additional neurological

testing. While the trial court’s trial observations do not operate to justify the

denial of that request, after the fact, I do believe the observations provided

sufficient evidence to show Dean suffered no resulting prejudice. Therefore,

I would conclude the error was harmless.

      In light of the foregoing, although I differ with Judge Bender’s reasoning,

I agree that Dean is not entitled to relief.

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