Com. v. Dodds, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RICHARD M. DODDS : No. 2222 EDA 2018
Appeal from the PCRA Order Entered June 27, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014515-2010
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
CONCURRING MEMORANDUM BY LAZARUS, J.: Filed: September 24, 2020
Based on the record before us, I concur with the majority’s decision to
reverse the PCRA court’s order granting Dodds relief. I write separately,
however, to emphasize that due process requires a defendant be competent
to stand trial in that he: (1) understands the charges and proceedings against
him; and (2) is able to assist in his own defense. U.S. ex. rel. McGough v.
Hewitt, 528 F.2d 339 (3d Cir. 1975) (“The conviction of a person while he is
legally incompetent violates due process.”); Commonwealth v. Hughes,
555 A.2d 1264, 1271 (Pa. 1989) (“[A] mental or physical disorder must
interfere with one’s ability to understand the proceedings or to assist counsel
before it is sufficient to constitute incompetency.”) (emphasis added);
Commonwealth ex. rel. Hilberry v. Maroney, 227 A.2d 159, 160 (Pa.
1967) (“The test to be applied in determining the legal sufficiency of [one’s]
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mental capacity to stand trial . . . [is] his ability to comprehend his position
as one accused [] and to cooperate with [] counsel in making a rational
defense. . . . Otherwise, the proceedings [] lack due process.”) (emphasis
added).
Where a defendant seeks to establish on appeal that he was unable to
assist with his own defense such that his right to a fair trial was violated, he
must demonstrate through clear and convincing expert testimony that his
condition at the time of trial actually prevented him from assisting in his own
defense, specifying how and why he was unable to assist. Some indicia of
mental difficulties vis-à-vis medication would be insufficient. See
Commonwealth v. Long, 456 A.2d 641 (Pa. Super. 1983) (taking
medication did not render defendant incompetent to plead guilty);
Commonwealth v. Hughes, 555 A.2d 1264 (Pa. 1989) (taking medication
did not render defendant incompetent to stand trial). Bald allegations from
trial counsel of defendant’s inability to assist would also be insufficient.
Dodds submits that “[t]here is a long line of case law which states that
a defendant must be able to meaningfully participate in his defense.” Brief of
Appellant, at 13, citing Atkins v. Virginia,1 536 U.S. 304, 320 (2002) and
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1 This case is inapposite; in Atkins, supra, the Supreme Court mentions in
dicta that individuals who are mentally handicapped are less able to assist
with their own defenses than other accused criminals. See id. (holding that
execution of a mentally disabled individual constitutes cruel and unusual
punishment).
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U.S. v. Renfroe, 825 F.2d 763 (3d Cir. 1987). As Dodds notes in his appellate
brief, the Pennsylvania Supreme Court, in Commonwealth ex. rel. Hilberry
v. Maroney, supra, articulated the test for determining whether one is
competent to stand trial, quoted above, and how that test relates to due
process.
In Commonwealth ex. rel. Hilberry, the defendant, who pled guilty
to killing his wife, challenged the validity of his conviction and sentence,
alleging that he was “mentally incompetent and unable to comprehend his
acts” at those times. Id. at 160. The Supreme Court noted that there was
“significant testimony in the record which could lend credence to and support
[] a finding” that the defendant lacked mental competency at the controlling
times, including expert testimony that his mind was that of a five-to-eight
year old before trial, that of a thirteen year old at trial, and that he was
previously committed to Farview State Hospital for the criminally insane. Id.
at 161-62. The Court found, however, that “at all relevant times[, defendant]
had a rational understanding of the nature of the plea and sentence
proceedings; [] he had a rational and factual understanding of the charges
involved; [and] he was able to and did cooperate in a rational manner in
assisting his lawyers in preparing a defense.” Id. at 162 (emphasis added).
In making the final conclusion, the Court noted, among other things, that:
[defendant, after voluntarily confessing his crimes to the police,]
manifested a clear understanding of his position and the fact that
he was charged with the murder of his wife. . . . He discussed
with [counsel] the advisability of standing trial before a jury, the
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possible consequences thereof, or whether it was best to admit
his guilt and throw himself on the mercy of the court. He also
discussed with them the advisability of his testifying in court and
accepted their recommendation that he refrain from doing so.
Id. (emphasis added);2 cf. Dusky v. U.S., 362 U.S. 402 (1960) (where
psychiatrist presented undisputed testimony that defendant’s schizophrenia
causes “disturbances in the ability to think clearly,” “an inability to interpret
reality from unreality,” and “would or could disable him from adequately
assisting his counsel in his defense,” record did not support finding of
defendant’s competency to stand trial despite expert testimony that he was
“oriented as to time and place and person” and understood charges and
proceedings against him) (emphasis added).
In the controlling cases where a defendant was awarded a new trial on
due process grounds, the trial courts failed to conduct any inquiry into the
defendant’s competency. In Drope v. Missouri, 420 U.S. 162 (1975), the
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2 In Hughes, supra, the defendant, who had just turned 18, was sentenced
to death after a jury convicted him of, inter alia, first-degree murder and rape
following the killing of a nine-year old child. Prior to trial, Hughes was
evaluated by three doctors who opined that he was competent to stand trial—
at least one of whom expressly stated that Hughes had the ability to
comprehend the charges against him and cooperate with counsel in his
defense—and a fourth doctor who opined that he was incompetent. Id. The
Court articulated the standard set forth in Commonwealth ex. rel. Hilberry,
supra, to evaluate Hughes’ competency, but did not specify what constitutes
a sufficient “ability to . . . cooperate with [] counsel in making a rational
defense” such that due process is satisfied. See Hughes, supra at 1270-71.
Ultimately, the Court rejected Hughes’ contention he was incompetent to
stand trial where the trial court credited the testimony of two of the
Commonwealth’s expert witnesses over the testimony of Hughes’ sole expert
witness, which was based on “contradictory factual conclusions.” Id.
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defendant, who faced the death penalty, filed a pre-trial motion for a
continuance so that he might be further examined and receive psychiatric
treatment; he attached a psychiatric evaluation that described his mental
illnesses, “borderline mental deficiency,” episodic irrational acts, and
“irrelevant [] speech.” Id. at 175-76. The trial court found that the “inartfully
drawn” motion “did not clearly suggest that petitioner’s competence to stand
trial was the question sought to be resolved,” denied the motion, and heard
no evidence as to defendant’s competence to stand trial. During trial, the
defendant unsuccessfully attempted suicide and “was [therefore] absent for a
crucial portion of his trial.” Id. at 180. Despite his absence, the trial court
denied his motion for a mistrial on the ground that his absence was voluntary,
and the trial proceeded; the jury returned a guilty verdict and defendant was
sentenced to life imprisonment. Id. at 162. Following an appeal,3 the United
States Supreme Court reversed Drope’s conviction and judgment of sentence
and remanded the case, noting that, because of his absence during a critical
stage of his trial, neither the judge nor counsel was able to observe him, “and
the hearing on his motion for a new trial, held approximately three months
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3 The Missouri Court of Appeals affirmed, holding that neither the psychiatric
report attached to [Drope’s] motion for a continuance nor his wife’s testimony
[describing “strange behavior”] raised a reasonable doubt of his fitness to
proceed, that [Drope’s] suicide attempt did not create a reasonable doubt of
his competence as a matter of law, and that he had failed to demonstrate the
inadequacy of the procedures employed for protecting his rights.
Drope, supra at 162.
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after the trial, was not informed by an inquiry into either his competence to
stand trial or his capacity effectively to waive his right to be present.” Id. at
182 (emphasis added); see also U.S. ex. rel. McGough v. Hewitt, 528 F.2d
339 (3d Cir. 1975) (finding defendant entitled to additional competency
evaluation and vacating conviction based on Drope where, although
defendant was deemed competent to stand trial, psychiatrist who made that
determination reported “[h]e may experience some difficulty in cooperating
with his lawyers, since he sometimes behaves negativistically, especially when
stressed,” and defendant presented expert testimony at PCRA hearing that he
was not competent to stand trial two years earlier) (emphasis added).
In Renfroe, supra, the district court refused to consider whether the
defendant had been competent at the time of trial. An expert witness testified
at a post-trial “due process and sentencing hearing” that defendant’s “cocaine
addiction would affect [his] capacity to confer effectively with counsel, that
there was a ‘real question’ in his mind as to whether [defendant] could
effectively focus and assist counsel, and that [defendant] was suffering from
a defect which affected his ability to cooperate effectively with counsel.” Id.
at 767 (emphasis added). Defendant, who had a number of mental illnesses
and used cocaine for sixteen years prior to trial and during his federal trial,
forbade his attorneys from developing a defense that incorporated his drug
use. In remanding the case to the district court, the Third Circuit court stated
that “[o]n these facts, . . . there was reasonable cause to question
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[defendant’s] competence[, and he had] a right to a hearing to determine his
competency.” Id.
Instantly, unlike the defendants in Drope and Renfroe, Dodds was
afforded a pre-trial competency evaluation where he was deemed competent
to stand trial.4 Furthermore, unlike the defendants in Dusky, Renfroe, and
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4 With regard to the fact that Dodds was falling asleep during his trial, we note
that at the PCRA hearing, trial counsel testified: “[Dodds], maybe, I’m not
sure if it was because he changed his medication or took it or didn’t take it,
was very sleepy. So while his demeanor was essentially the same [as the day
before], he was more tired and not as much with it as I thought.” N.T. PCRA
hearing, 5/23/16, at 29 (emphasis added). At that point, trial counsel
requested the second competency evaluation, which was denied. Trial counsel
further testified at the PCRA hearing that:
[Dodds] had a mild improvement throughout the trial in that he
. . . was more alert[.] . . . I know that during one of the trial days,
in particular, he was falling asleep next to me. He attributed that
in conversations from not sleeping well the previous days. . . . I
know during the trial he was not as sleepy as the trial progressed.
I thought it was a situation where he was getting more sleep. I
can’t attribute why he was getting more sleep, but he seemed
more alert. . . . He was not as sleepy after that day.
Id. at 29-30 (emphasis added).
This Court previously rejected Dodds’ argument that the trial judge abused
her discretion in denying a second competency evaluation within 24 hours of
his first. See Commonwealth v. Dodds, 287 EDA 2014, 2014 WL
10558255, *1-*2 (Pa. Super. filed Nov. 25, 2014) (unpublished memorandum
decision). We note that there is an important distinction between falling
asleep and being asleep, the latter having potential to constitute absence from
trial. We find the facts here remarkably distinguishable from Drope, supra,
where the defendant, who received no competency evaluation, spent a crucial
portion of his trial physically absent from the courtroom due to his suicide
attempt. Here, where the record is amorphous, we defer to the trial court
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U.S. ex. rel. McGough, Dodds has not presented any expert testimony or
psychiatric evaluations expressing that he was suffering from a defect that
would, could, or did impact his ability to effectively consult with counsel, either
before trial, during trial, or at the PCRA hearing.5 The only indication thereof
on the record is that trial counsel used those “magic words” less than 24 hours
after Dodds was deemed competent. Curiously, in his appellate brief, Dodds
fails to even complete his argument as to why he could not assist with his own
defense by testifying as to his state of mind at the time of the shooting.
Defense counsel admitted that he could not call the Appellee to
testify on his own behalf because [blank spaces intentional] The
state of mind of the Appellee was the critical issue in the case at
the time of the incident because if he had a reasonable belief of
fear of imminent serious bodily injury or death, obviously a verdict
of guilty would not have been appropriate.
Brief of Appellant, at 16 (emphasis added).
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judge, who is in the best position to evaluate what is going on in her
courtroom.
5 Similarly, Dodds did not present any testimony either at trial or at the PCRA
hearing regarding what his state of mind was at the time of the shooting;
without knowing what the substance of his testimony would have been, there
is no way to conclude that, had he obtained a continuance and been able to
testify at a later date, there is a reasonable probability that the outcome of
his trial would have been different. This is particularly true in light of the
compelling testimony from a number of witnesses refuting any claim of self-
defense (i.e., a reasonable belief of imminent serious bodily injury) that Dodds
may have attempted to make on the stand. Such testimony included that
Dodds shot the unarmed victim from approximately ten feet away while the
victim held his palms open in a gesture of surrender, with no one else near
him. See N.T. Trial, 7/11/13, at 66-102.
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In fact, trial counsel’s own testimony belies the claim that Dodds was
unable to participate in his own defense.
Q: And he has to be able to assist in the defense, correct?
A: [H]e helped me pick the jury.
Q: Right. So he’s obviously assisting in the defense?
A: Yes.
* * *
Q: And he had no problem at all seeming to understand and help
you decide whether or not he should testify, correct?
A: He was — at the point where we had a conversation about
whether he should testify, he was — he understood what we were
talking about. And I had his parents with me so they would be a
part of that conversation.
Q: And we’re not talking about whether or not he would have
been the best on the stand, we’re just talking about was he able
to participate in the defense, in the strategy. Was he able to
participate?
A: Yes. He was an active participant in the discussion about
whether he should testify or not.
Q: And in your opinion, would he have been able, if you did put
him on the stand, to rationally answer the questions?
A: He would have answered the questions. I don’t think he would
have been the best witness.
Q: Right. Just because of the way he would have presented?
A: Correct.
Q: Not due to an inability to understand the questions and give
appropriate responsive answers, correct?
A: He would have — there was nothing in our conversation that
would lead me to believe that he would not understand the
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questions on cross. My concern with presenting him was that the
physical manifestations of his condition would have the jury
conclude that he must have shot [the victim] because of some
mental illness that he had.
Q: Right. So you’re basically trying to get in, as counsel always
does, trying to get into the minds of the jurors and anticipate how
they may react to whatever evidence you presented correct?
A: Correct.
Q: But he could have presented the evidence?
A: If he had told me after all we had discussed that he wished to
testify, I would have put him on the stand.
N.T. PCRA hearing, 5/23/16, at 57-59 (emphasis added).6
Accordingly, the record reflects that, like the defendant in
Commonwealth ex. rel. Hilberry, supra—who presented much more
compelling evidence of incompetency and an inability to confer with counsel
than Dodds—Dodds actively participated in a meaningful discussion with trial
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6 Trial counsel explained that,
[W]hile it would have been my preference to call [Dodds to
testify], [his testimony] was, in essence, cumulative [to] the
testimony as to what Shannon Bouvia already said, because she
was present and testified that the people were advancing towards
him, and that [Dodds] was saying, don’t come forward, don’t
come forward. Shannon Bouvia was also present when [Dodds]
was beat up in the house moments before, and from her
testimony, that was a continuous course of action[.] . . . So in
my mind, the record — self[-]defense already was present without
exposing [Dodds] to being cross-examined.
N.T. PCRA Hearing, 5/23/16, at 46.
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counsel about the advisability of testifying in court, and chose to accept
counsel’s recommendation that he refrain from doing so.
Dodds has not shown any violation of his due process rights because the
record does not establish that he was unable to assist with his own defense at
the time of trial. Because Dodds received a pre-trial competency evaluation,
was deemed competent at the time of trial, and failed to present any expert
evidence before trial, after trial, or at a PCRA hearing that he was suffering
from a defect that impacted his ability to assist with his own defense at the
time of trial, this matter is readily distinguishable from the cases finding a
violation of due process where a defendant was unable to effectively assist
with his own defense. Accordingly, I concur with the majority.
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