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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. J. A26026/15
[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.
-2- J. A26026/15
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
-3- J. A26026/15
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
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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. J. A26026/15
[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.
-2- J. A26026/15
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
-3- J. A26026/15
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
-4- J. A26026/15
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).)
-5- J. A26026/15
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.
-6- J. A26026/15
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.
-7- J. A26026/15
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/22/2015
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