Com. v. Sinclair, K.

J-A21016-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KWABENA SINCLAIR : No. 61 EDA 2021
Appeal from the Order Entered November 19, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001771-2017
BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 19, 2021
The Commonwealth appeals from the order1 dismissing the charges of
aggravated assault, simple assault, possessing an instrument of crime, and
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* Former Justice specially assigned to the Superior Court.
1 In its December 17, 2020 notice of appeal, the Commonwealth stated that
it was appealing an order entered on November 19, 2019. On March 4, 2021,
this Court issued a rule to show cause why the appeal should not be dismissed
as being from an order that was not entered on the docket. The
Commonwealth filed a response on March 5, 2021, and it explained that the
order was in fact entered November 19, 2020, rather than November 19,
2019, and that a typographical error had occurred. As the docket reflects that
the order the Commonwealth challenged was entered on November 19, 2020,
and because the Commonwealth filed a timely appeal on December 17, 2020,
we are satisfied that the date on the notice of appeal was merely a
typographical error, and we decline to quash the appeal. See e.g.,
Commonwealth v. Brown, 399 A.2d 699, 699 n.1 (Pa. Super. 1979)
(declining to quash an appeal due to a typographical error), rev’d on other
grounds 438 A.2d 592 (Pa. 1981). We have corrected the caption accordingly.
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recklessly endangering another person2 that were filed against Kwabena
Sinclair (Appellee). The Commonwealth contends that the Mental Health
Court (MHC) erred in applying the extreme measure of dismissing the charges
and failed to hold a competency hearing. In addition, the Commonwealth
argues that the MHC did not have jurisdiction to dismiss the case pursuant to
50 P.S. § 7102 of the Mental Health Procedures Act (MHPA).3 Appellee argues
that the Commonwealth’s appellate issues are waived because they were not
raised before the MHC. We vacate and remand with instructions.
The MHC summarized the relevant facts and procedural history of this
matter as follows:
The instant matter stems from a January 31, 2017, incident where
[Appellee] was arrested and accused of shooting his 71-year-old
mother, Constance Rivers, multiple times in the arm and chest
with a pellet gun causing injuries that required medical treatment.
On June 27, 2017, [Appellee] was found incompetent and
committed for thirty (30) days to prison health services wing.
[Appellee] was accepted into Mental Health Court and on August
3, 2017, [Appellee] was found not competent to proceed and
committed to Norristown State Hospital for another sixty (60)
days which began his long stint with the Mental Health Court
program.
On June 28, 2018, the Honorable Sheila Woods-Skipper, vacated
[Appellee’s] Norristown State Hospital commitment, and
[Appellee] was recommitted as not competent under [50 P.S. §
7305 (section 305) of the MHPA] to placement for up to 180 days.
[Appellee’s] bail modification motion was granted and changed
from monetary bail to Sign Own Bond in the amount of $35,000.
[Appellee] was paroled on July 5, 2018, and transported to
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2 18 Pa.C.S. §§ 2702(a), 2701(a), 907(a), and 2705, respectively.
3 50 P.S. §§ 7101-7503.
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Southwest Nu Stop Housing of Change, located at 4807
Germantown Avenue, Philadelphia, PA.
[Appellee] remained in compliance with the conditions of the
program, however, following the death of his mother, from cancer
not related to the incident, [Appellee’s] compliance deteriorated.
At the March 21, 2019, status listing, [Appellee] arrived late and
revealed that his mother had passed away. On April 4, 2019,
[Appellee] was found to not be medication compliant and
experiencing behavioral problems at his placement. On May 9,
2019, [Appellee] was found not compliant, bail was reinstated at
$35,000 monetary and [Appellee] was taken into custody.
On August 13, 2019, [Appellee] was found competent but in need
of treatment and was committed to the Detention Center Forensic
Unit for thirty (30) days. On September 10, 2019, [Appellee] was
found not competent to proceed by agreement and committed for
sixty (60) days to the Detention Center Forensic Unit, pending
additional placement. On January 14, 2020, having secured new
placement, [Appellee’s] bail was modified to Sign Own Bond in the
amount of $35,000, and he was transported to Guadenzia New
Outlooks in Philadelphia, PA, when bed space became available.
On February 11, 2020, [Appellee] was found to be in compliance
with the Mental Health Court treatment plan.
On June 18, 2020, the [Appellee] was once again found in
compliance with the treatment plan and was given permission to
move in with his girlfriend to begin to live independently while
maintaining compliance with Mental Health Court treatment plan.
On July 23, 2020, [Appellee] was still living independently at a
new address because of bug and rodent infestations in the
previous two residences but still compliant and in contact with his
case manager. At the October 10, 2020 hearing it was reported
that [Appellee] had no new arrests and was engaged in mental
health treatment but was not receiving case management and it
was not apparent where [Appellee] was currently residing.
At the November 19, 2020 hearing defense counsel reported that
[Appellee’s] location was unknown and they were unable to get in
contact with [Appellee]. [Appellee] had not been receiving case
management, and it was reported by [Appellee’s] peer specialist
that contact with [Appellee] has been sporadic, he was not
focused and most likely not medication compliant. It was also
reported by the Commonwealth that [Appellee] has had no new
arrests.
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[Appellee] had moved from his previously known address, and his
peer specialist did not know his current whereabouts.
This court weighed the option of issuing a bench warrant for
[Appellee] but reconsidered following a discussion with defense
counsel and the Commonwealth. The complaining witness, the
[Appellee’s] mother, had passed away from cancer not related to
the incident, and the other eyewitness, the decedent’s brother and
[Appellee’s] uncle, was last in contact with the Commonwealth in
November of 2019. Since, the court had released [Appellee] to
independent living, he had incurred no new arrests. There was no
record of a current address for [Appellee] so he did not have
service for the hearing. The culmination of these circumstances
prompted defense counsel to move for a discharge stating that
she saw no reason to really continue to follow this case anymore.
Based on the circumstances, this court discharged the case
against [Appellee on November 19, 2020, and] the
Commonwealth objected.
On November 24, 2020, the Commonwealth filed a Motion to
Reconsider, which this court denied on December 17, 2020.
MHC Op., 2/16/21, at 1-3 (record citations and quotation marks omitted, and
some formatting altered). On December 17, 2020, the Commonwealth filed
a timely notice of appeal. Both the MHC and the Commonwealth complied
with Pa.R.A.P. 1925.
On appeal, the Commonwealth raises the following issue:
Did the [MHC] err by dismissing charges of aggravated and simple
assault, possessing an instrument of crime, and recklessly
endangering another person at a status listing concerning
[Appellee’s] mental health treatment?
Commonwealth’s Brief at 4.
We first address Appellee’s claim that the Commonwealth waived its
issue on appeal by failing to raise it before the MHC or in its Rule 1925(b)
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statement. Appellee’s Brief at 14-16. Appellee argues that the
Commonwealth’s Rule 1925(b) statement was misleading and prevented the
MHC from addressing the correct issue in its Rule 1925(a) opinion. Id. at 15-
16. We disagree.
As noted above, when the MHC dismissed the charges, the
Commonwealth objected, and it subsequently filed a motion for
reconsideration. It is undisputed that Appellee was repeatedly determined to
be incompetent to stand trial. Under the MHPA, dismissal of criminal charges
against an individual who was determined to be incompetent implicates 50
P.S. § 7403(e). See 50 P.S. §§ 7401-7407 (Determinations Affecting those
Charged with Crime or Under Sentence). In the motion for reconsideration,
the Commonwealth asserted that the MHC erred in dismissing the charges,
and it recited the facts underlying the charges against Appellee, his dangerous
conduct, and his continued need for mental health treatment. Mot. for
Reconsideration, 11/24/20, at 1-4. We find that the issue the Commonwealth
presents on appeal and the application of Section 7403(e) were raised in the
trial court.
Additionally, in its Rule 1925(b) statement, the Commonwealth raised
the following issue, which is nearly identical to the issue raised in its appellate
brief: “Did the [MHC] err by dismissing, sua sponte, charges of aggravated
and simple assault, possessing an instrument of crime, and recklessly
endangering another person at a status listing concerning [Appellee’s] mental
health treatment?” Commonwealth’s Rule 1925(b) Statement, 1/19/21. It is
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apparent from the record and the circumstances of this case that the MHC’s
dismissal of the charges implicated Section 7403(e), because it is the section
of the MHPA that provides for determinations of incompetency to proceed,
stays of proceedings, and dismissal. See 50 P.S. § 7403(e). It is undisputed
that the MHC found Appellee to be incompetent at prior hearings. However,
the Commonwealth argues that the MHC did not determine Appellee’s
competency pursuant to Section 7403(e) prior to dismissing the charges. The
MHC framed the issue as Appellee requesting discharge because the
complainant was deceased, the Commonwealth had not had contact with the
other eyewitness for more than a year, Appellee had not incurred any new
arrests after his release to independent living and that Appellee’s current
whereabouts are unknown. MHC Op., 4-5. Nevertheless, the factors the trial
court discussed involved the application of Section 7403(e). Accordingly, we
decline to find waiver.
The Commonwealth asserts that the MHC previously found Appellee
incompetent, and the MHC did not make a competency determination
pursuant to Section 7403(e) prior to dismissing the charges against Appellee.
Id. at 11. Additionally, the Commonwealth contends that despite the MHC’s
opinion to the contrary, the time between Appellee’s criminal acts and the
order dismissing the charges was not long enough that it caused prejudice.
Id. Finally, the Commonwealth argues that the MHC’s order endangered
Appellee’s family and prevented Appellee from obtaining mental health
treatment. Id.
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Our review of an order dismissing charges following a competency
determination is limited to determining whether the findings of the trial court
are supported by the record and whether the trial court’s inferences and legal
conclusions based on those findings are correct. Commonwealth v.
Kerrigan, 413 A.2d 729, 731-32 (Pa. Super. 1979). However, as will be
discussed below, the trial court made no determination of competency in the
case at bar.
Section 7403(e) provides as follows:
When the court, on its own motion or upon the application of the
attorney for the Commonwealth or counsel for the defendant,
determines that such person has regained his competence to
proceed, the proceedings shall be resumed. If the court is of the
opinion that by reason of the passage of time and its effect upon
the criminal proceedings it would be unjust to resume the
prosecution, the court may dismiss the charge and order the
person discharged.
50 P.S. § 7403(e).
As noted, it is undisputed that Appellee was previously determined to
be incompetent to stand trial, accepted into the MHC, and had a treatment
plan. This Court has held: “[d]ismissal of the charges is only appropriate when
a defendant is found incompetent and then regains competency but too much
time has lapsed in the interim making it unjust to continue the prosecution.”
Commonwealth v. Hazur, 539 A.2d 451, 454 (Pa. Super. 1988).
Furthermore:
We are not directed to, nor have we been able to find, either
statutory or case law which provides for the dismissal of charges
where the accused is incompetent and expected to remain so
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forever, as appears to be the case here. While we concede the
pointlessness of reversing the trial court and reinstating charges
for which appellee will most likely never stand trial, we are
constrained to do so, absent any statutory authority for dismissal.
Commonwealth v. McGargle, 549 A.2d 198, 199 (Pa. Super. 1988).
Recently, in Commonwealth v. Humphrey, 582 MDA 2020, 2021 WL
1616879 (Pa. Super. filed Apr. 26, 2021) (unpublished mem.),4 our Court
addressed McGargle, Hazur, and the application and interpretation of
Section 7403(e). In Humphrey, we concluded that “under § 7403(e) as
construed in McGargle and Hazur, the trial court lacked statutory authority
to dismiss the charges against [the defendant] because it found that [the
defendant] remains incompetent.” Humphrey, 2021 WL 1616879 at *3.
Therefore, a trial court may not dismiss criminal charges against a defendant
unless and until it first makes a determination of competency. 5 Hazur, 539
A.2d at 454; McGargle, 549 A.2d at 199. If the trial court determines that
the defendant remains incompetent, it is precluded from dismissing the
charges. McGargle, 549 A.2d at 199. If, however, the trial court determines
that the defendant has regained competency, it may then consider whether
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4 See Pa.R.A.P. 126(b) (noting that unpublished memorandum decisions of
the Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
5 As this Court noted in Humphrey and McGargle, we are cognizant of the
potential “pointlessness of reversing the trial court and reinstating charges”
for which Appellee may never stand trial. Humphrey, 2021 WL 1616879, at
*2 (quoting McGargle, 549 A.2d at 199). However, “we are constrained to
do so, absent any statutory authority for dismissal.” Id. (quoting McGargle,
549 A.2d at 199).
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to proceed to trial or dismiss the charges pursuant to Section 7403(e). Hazur,
539 A.2d at 454.
In the instant case, we conclude that MHC’s order dismissing the
charges was premature because the MHC never determined whether Appellee
was competent or incompetent.6 See Hazur, 539 A.2d at 454; see also
McGargle, 549 A.2d at 199. Accordingly, we are constrained to vacate the
MHC order and remand this matter with instructions for the MHC to hold a
hearing to determine Appellee’s competency consistent with Section 7403(e)
including the appropriate factual and legal findings. See McGargle, 549 A.2d
at 199. Should the MHC determine to adjudicate the underlying criminal
charges in Appellee’s case after the competency determination, the parties
may raise their relevant arguments including jurisdictional challenges which
are premature at this juncture.7
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6 Because we conclude that the MHC’s order was premature due to the
absence of a competency determination, we do not reach the
Commonwealth’s subsequent assertion concerning whether the MHC, a
problem solving court pursuant to 42 Pa.C.S. § 916 (enabling the courts of
common pleas to create problem solving courts including mental health
courts), had the jurisdiction or authority to dismiss the underlying criminal
charges in the case. See Commonwealth’s Brief at 14-17. As stated above,
the MHC must first make a competency determination before it may dismiss
charges pursuant to Section 7403(e). We note, however, that our research
has uncovered limited legal authority addressing the question of whether the
MHC, as a court of common pleas problem solving court, has the jurisdiction
to adjudicate the underlying criminal charges even after making its
competency determination.
7On August 25, 2020, the Pennsylvania Supreme Court granted allowance of
appeal from our Court’s decision involving a problem solving court. See
(Footnote Continued Next Page)
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Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2021
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Commonwealth v. McCabe, 230 A.3d 1199 (Pa. Super. 2020), appeal
granted, 238 A.3d 330 (Pa. 2020). The issues on appeal are as follows:
1) Is the pretrial disposition program Veterans Treatment Court
controlled by Chapter 3 of the Rules of Criminal Procedure?
(2) Was [Petitioner] impermissibly denied full benefits of the
Veterans Treatment Court program, namely a dismissal of
charges, based upon his inability to pay full restitution, in
violation of his Fourteenth Amendment right to Due Process and
Equal Protection under the United States Constitution?
McCabe, 238 A.3d at 330 (emphasis added). The second issue from McCabe
involves, among other things, dismissal of charges by a problem solving court.
Id. We respectfully suggest that the problem solving court’s jurisdiction and
authority to adjudicate or dismiss charges may be clarified by the
Pennsylvania Supreme Court on review.
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