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Fugate v. Commonwealth11/21/2001
haracterize Appellant's absence at the hearing as a "voluntary exclusion," there is no evidence in the record that Appellant's absence at the hearing was an intentional failure to appear. In fact, all of the evidence points to an opposite conclusion. As a result of the automobile accident which led to the charges against him, Appellant suffered a severed spinal cord injury which left him without the ability to walk. Appellant attended none of the pretrial proceedings. During the competency hearing itself, Appellant was a non-ambulatory medicated nursing home patient who could not transport himself to the hearing. It is a mistake for the majority to equate Appellant's attorney's decision to waive his client's presence with Richmond's deliberate no-show, and the majority opinion adopts mutually exclusive positions when, on the one hand, it concludes that Appellant was physically incapable of attending the hearing, but also characterizes Appellant's absence as a "voluntary exclusion." In any event, Appellant's convalescence restricted his autonomy in a manner tantamount to incarceration and, ordinarily, courts have given special scrutiny to waiver claims in similar situations.
Clearly, this error would not warrant reversal if harmless. Because of the constitutional nature of this error, however, the Commonwealth bears the burden of proving it harmless beyond a reasonable doubt. After reviewing the testimony at the competency hearing, I do not believe the Commonwealth has satisfied this burden, and I cannot agree with the majority's analysis that Appellant's presence could only have contributed to the trial court's finding of competency. Specifically, I believe Appellant's involuntary absence from the competency hearing raises questions regarding the integrity of the process. As was the case in Dean:
. . . [The Commonwealth's expert's] testimony . . . that appellant may have had a history of malingering in psychological and intelligence testing was particularly damaging to the defense.
[This] testimony . . . played a significant role in the overall weight of the evidence against Dean. It is impossible to predict with certainty what effect recognition of the appellant's right to be present and to confront these witnesses during their live testimony would have had in the outcome of the case. We cannot find the error harmless.
Accordingly, I dissent from the majority opinion and I would remand the case to the trial court, as this Court has recently done in Thompson v. Commonwealth, for the trial court to determine the practicality of conducting a retrospective competency hearing -with Appellant present this time, unless he personally waives his right to attend - and to either conduct a competency hearing or order a new trial. If the trial court found that a retrospective competency hearing is practicable at this date, and further found following that evidentiary hearing that Appellant was competent to stand trial in 1998, the convictions should stand. If, however, the trial court found that Appellant was not competent to stand trial in 1998, it should vacate the convictions, and Appellant would be subject to retrial if now competent.
Stumbo, J., joins this dissent.
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