Com. v. Humphrey, J.

J-S47008-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant

v.

JQUAN HUMPHREY

Appellee No. 582 MDA 2020

Appeal from the Order Entered February 21, 2020
In the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0002008-2017

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant

v.

JQUAN HUMPHREY

Appellee No. 583 MDA 2020

Appeal from the Order Entered February 21, 2020
In the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-CR-0000260-2018

BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.: FILED: JANUARY 3, 2023

Presently before us on remand from our Supreme Court are the

Commonwealth’s appeals from orders dismissing criminal charges against

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* Retired Senior Judge assigned to the Superior Court.
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Appellee, Jquan Humphrey, under § 7403 of the Mental Health Procedures Act

(“MHPA”), 50 P.S. § 7403. Upon review, we vacate and remand.

The Commonwealth charged Appellant with two counts of aggravated

harassment by a prisoner, 18 Pa.C.S.A. § 2703.1,1 based on Appellant’s

alleged misconduct while he was an inmate at State Correctional Institute

Benner Township (“SCI Benner”). One charge arose from Appellant’s allegedly

throwing a bag of urine on a corrections officer; the other from Appellant’s

allegedly spitting on a corrections officer. On September 21, 2018, the trial

court ordered Humphrey to undergo a psychiatric evaluation. Dr. Scott J.

Scotilla conducted the evaluation on November 7, 2018, and recommended

further evaluation of Humphrey at the Forensic Psychiatric Center at Torrance

State Hospital (“Torrance”).

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1 Section 2703.1 provides:

A person who is confined in or committed to any local or county
detention facility, jail or prison or any State penal or correctional
institution or other State penal or correctional facility located in
this Commonwealth commits a felony of the third degree if he,
while so confined or committed or while undergoing transportation
to or from such an institution or facility in or to which he was
confined or committed, intentionally or knowingly causes or
attempts to cause another to come into contact with blood,
seminal fluid, saliva, urine or feces by throwing, tossing, spitting
or expelling such fluid or material.

18 Pa.C.S.A. § 2703.1. This offense carries a maximum penalty of 7 years
of incarceration. 18 Pa.C.S.A. § 1103(3).

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On March 21, 2019, Humphrey filed a petition alleging that he was not

competent to stand trial. On May 16, 2019, by agreement of the parties, the

trial court entered an order finding Humphrey not competent to stand trial,

and directing him to undergo involuntary treatment through the Pennsylvania

Department of Corrections (“DOC”) for a maximum of 60 days. In orders

dated July 8, 2019, and October 25, 2019, in response to requests from prison

authorities and the DOC, the trial court attempted to clarify the nature of the

required treatment. The October 25, 2019 order discharged Appellant from

state prison and committed him to Torrance for up to 60 days pending a

psychiatric evaluation. But Torrance denied admission to Humphrey because

it did not accept patients serving a term of state incarceration.

On December 5, 2019, Humphrey filed motions for dismissal of the

pending charges, arguing that dismissal was appropriate because two years

had passed since the alleged offenses; that Humphrey was not competent to

stand trial; and that the Commonwealth was unable to provide any

competency restoration services. Humphrey claimed he was unlikely to regain

competency and that eventual resumption of prosecution would be unjust.

The trial court conducted a hearing on February 7, 2020. Three weeks

later it entered the order on appeal, dismissing the two charges of aggravated

harassment under § 7403:

(a) Competency Determination and Burden of Proof.-
-Except for an incompetency examination ordered by the court on
its own motion as provided for in section 402(d), the individual
making an application to the court for an order directing an

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incompetency examination shall have the burden of establishing
incompetency to proceed by a preponderance of the evidence.
The determination shall be made by the court.

(b) Effect as Stay--Exception.--A determination of
incompetency to proceed shall effect a stay of the prosecution for
so long as such incapacity persists, excepting that any legal
objections suitable for determination prior to trial and without the
personal participation of the person charged may be raised and
decided in the interim.

(c) Defendant’s Right to Counsel; Reexamination.--A
person who is determined to be incompetent to proceed shall have
a continuing right to counsel so long as the criminal charges are
pending. Following such determination, the person charged shall
be reexamined not less than every 90 days by a psychiatrist
appointed by the court and a report of reexamination shall be
submitted to the court and to counsel.

(d) Effect on Criminal Detention.--Whenever a person
who has been charged with a crime has been determined to be
incompetent to proceed, he shall not for that reason alone be
denied pretrial release. Nor shall he in any event be detained on
the criminal charge longer than the reasonable period of time
necessary to determine whether there is a substantial probability
that he will attain that capacity in the foreseeable future. If the
court determines there is no such probability, it shall discharge
the person. Otherwise, he may continue to be criminally detained
so long as such probability exists but in no event longer than the
period of time specified in subsection (f).

(e) Resumption of Proceedings or Dismissal.--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.

(f) Stay of Proceedings.--In no instance, except in cases
of first and second degree murder, shall the proceedings be stayed
for a period in excess of the maximum sentence of confinement
that may be imposed for the crime or crimes charged or ten years,

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whichever is less. In cases of a charge of first or second degree
murder, there shall be no limit on the period during which
proceedings may be stayed.

50 P.S. § 7403(a)-(f), 1976 Pa. Laws. 817.

Of particular importance prior to the Supreme Court’s remand was

subsection (e), whose first sentence provides for resumption of prosecution

after the defendant regains competence and whose second sentence provides

for dismissal of charges where resumption of prosecution would be unjust

because of the passage of time. 50 P.S. § 7403(e). The statute does not

make expressly clear whether the defendant’s resumption of competence,

described in the first sentence of § 7403(e), is a prerequisite to the dismissal

of charges as described in the second sentence. The trial court found that it

was not. The trial court explained that the aggravated harassment charges

were already two years old as of its opinion and order, and that Humphrey

would be ineligible for competency restoration services at Torrance for at least

another two and one-half years, that being the remainder of the state

sentence he was serving. Thus, the court reasoned, the pending charges

would be nearly five years old before Humphrey could begin competency

restoration treatment. “Given the severity of [Humphrey’s] incompetency,

the court finds it highly unlikely that [Humphrey] would be able to recall the

events for which he is charged, and certainly would be prejudiced in defending

himself at trial due [sic] as a result.” Trial Court Opinion, 2/19/20, at 4. For

those reasons, the trial court dismissed the charges. Id.

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This panel reversed, relying on Commonwealth v. McGargle, 549

A.2d 198 (Pa. Super. 1988), abrogated by Commonwealth v. Humphrey,

283 A.3d 275 (Pa. 2022). In McGargle, as here, the Court considered an

order dismissing criminal charges against a defendant who was deemed

incompetent to stand trial and unlikely to regain competence in the

foreseeable future. Id. at 199. The McGargle Court held that § 7403 did not

authorize dismissal of charges where the defendant remained incompetent:

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
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.

Id. at 199. In summary, the McGargle Court concluded that § 7403 did not

provide statutory authority for dismissal of pending charges prior to a

defendant’s regaining competence.

Our Supreme Court granted Humphrey’s petition for allowance of appeal

and issued an opinion abrogating McGargle and reversing this panel’s order.

In a divided opinion, our Supreme Court construed § 7403 to permit dismissal

of charges against a defendant who is incompetent to stand trial and will

remain so for the foreseeable future:

As [Humphrey] cogently argues, under the
Commonwealth’s construction of Section 7403(e), the trial court
lacks the authority to dismiss criminal charges filed against an
incompetent defendant under any circumstances, regardless of
the duration of the stay of the criminal proceedings, the likelihood
of the defendant regaining competence, the lack of treatment

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options available to restore competency, and the prejudice
suffered by the defendant due to the passage of time and its effect
on the criminal proceedings.

Humphrey, 283 A.3d at 292. Further,

[T]he Commonwealth’s interpretation does not give effect
to all provisions of Section 7403, particularly subsection (f)[….]
As Appellant persuasively argues, subsection (f) sets forth a
mandatory limit on the duration of stays of criminal prosecutions
of incompetent defendants in cases involving charges other than
first and second degree murder, thereby implicitly acknowledging
that a trial court must dismiss charges when that maximum period
has expired. Subsection (f), however, does not provide authority
to dismiss the criminal charges. The exclusive authority to dismiss
charges appears in subsection (e). If we construe subsection (e)
as conditioning dismissal on the defendant’s regaining of
competency, trial courts would lack statutory authority to dismiss
charges in cases where the maximum period for the stay under
subsection (f) has lapsed and the defendant remains incompetent.
This interpretation of subsection (e) would effectively render
subsection (f) inoperable.

Id. at 292–93. For these reasons, the Humphrey Court rejected the

Commonwealth’s argument that § 7403 provides no statutory authority for

dismissal of pending charges against a defendant who remains incompetent.

Our Supreme Court remanded to us for consideration of the

Commonwealth’s two remaining assertions of error:

Whether the Centre County Court of Common Pleas below
erred when it dismissed the charges in the instant matter against
[Humphrey] pursuant to 50 P.S. § 7403, where the evidence on
record was insufficient to support the court’s assumption and
conclusion that [Humphrey] would be prejudiced if he were
restored to competency and made to stand trial at a future date?

Whether the Centre County Court of Common Pleas below
erred when it dismissed the charges in the instant matter against
the Humphrey pursuant to 50 P.S. § 7403, rather than ordering a

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competency evaluation of [Humphrey] by the Department of
Human Services?

Commonwealth’s Brief at 5.2

We are cognizant that the record in support of the orders on appeal is

cold, the hearing having occurred on February 7, 2020. And we are cognizant

of the Commonwealth’s argument that the trial court failed, prior to dismissing

the charges, to comply with the requirement of § 7403(c) that a person

declared incompetent be reexamined for competency at least every 90 days.

The Supreme Court majority noted the potential need for a remand on this

point:

We observe additionally that notwithstanding the
Commonwealth’s request to have Appellant reevaluated pursuant
to Section 7403(c) […] the trial court refrained from doing so. If
it deems it necessary, the Superior Court may remand the matter
to the trial court for compliance with that provision.

Humphrey, 283 A.3d at 295 n. 22. Nonetheless, if we conclude that sufficient

evidence supported the orders on appeal, then this matter is at a close. We

therefore begin with that issue.

The statute, as noted above, provides, “[i]f 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. § 7304(e). We

review the order dismissing charges to determine “whether the findings of the

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2 We have relied on the parties’ original briefs filed prior to remand.

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trial judge are supported by the record and whether the inferences and legal

conclusions based thereon are correct.” Commonwealth v. Kerrigan, 413

A.2d 729, 731-32 (Pa. Super. 1979). In Kerrigan, the defendant “failed to

offer any evidence that it would be ‘unjust’ to resume prosecution in the event

that he once again became incompetent.” Id. at 732. Thus, we affirmed the

order denying his motion to dismiss. Id. at 732.

Here, Humphrey presented no evidence at the February 7, 2020

hearing. The Commonwealth produced three witnesses to discuss the

treatment options available to a state inmate who is declared incompetent to

face pending criminal charges. Jessica Penn Shires works in the Pennsylvania

Department of Human Services (“DHS”), Office of Mental Health and

Substance Abuse Services (“OMHSAS”). N.T. Hearing, 2/7/20, at 4. She

testified that an inmate who is not competent to stand trial must await parole

or the expiration of their maximum sentence before beginning competency

restoration services at Torrance or Norristown State Hospital. Id. at 5-6. But

OMHSAS can do periodic competency evaluations for state inmates. Id. at 6-

7. The Department of Corrections (“DOC”) offers mental health treatment but

not competency restoration services. Id. at 7-10.

The Commonwealth also presented DHS lawyer Jeffrey Hoeflich, who

confirmed Shires’ testimony that Torrance will not accept a person serving a

sentence of state incarceration, and that DHS will send personnel into state

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correctional institutions to conduct periodic competency evaluations. Id. at

15-17.

Finally, the Commonwealth presented DOC psychologist Cynthia Wright,

who described the forms of mental health treatment available within the DOC.

Wright said Humphrey was in the Secured Residential Treatment Unit at SCI

Greene, which is for inmates with serious mental illness or chronic disciplinary

problems. Id. at 24. Humphrey refused to cooperate in Wright’s June 27,

2019 psychological assessment of him, and then was transferred to a

restricted housing unit at SCI Forest where he was seen by a psychologist at

least once every 30 days and by a psychiatrist every 90 to 120 days. Id. at

25-26. Wright confirmed that the DOC would permit Humphrey to undergo a

competency evaluation. Id. at 26.

In its written opposition to Humphrey’s motion to dismiss, the

Commonwealth attached Wright’s June 27, 2019 report, in which Wright

opined that Humphrey’s behavior in prison was not the result of mental illness.

Rather, Wright believed Humphrey engaged in goal-driven attempts to get

special treatment.

In summary, the record establishes that Humphrey was incompetent as

of his November 7, 2018 court-ordered assessment by Dr. Scotilla. He was

never reevaluated after that date. Humphrey was able to (and did) receive

mental health treatment, but not competency restoration services, while

serving his sentence of state incarceration. Likewise, DHS could send

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personnel into a state prison to conduct periodic competency evaluations on

an inmate. The record is silent as to whether Humphrey’s treatment improved

his condition.

In his brief, Humphrey argues that the Commonwealth’s failure, over

the course two years, to procure the treatment Humphrey needed to regain

his competency, combined with the other factors cited by the trial court, is a

sufficient basis for affirming the trial court’s orders. The Commonwealth

counters that the complications arise from Appellant’s state incarceration for

a prior conviction, and that a mentally incompetent inmate should not be free

to assault corrections officers with impunity. The Commonwealth also notes

that the record contains evidence that Humphrey’s behavior is goal driven and

is not the result of mental illness.

In rendering its decision, the trial court found as follows: “Given the

severity of [Humphrey’s] incompetency, the court finds it highly unlikely that

[Humphrey] will be able to recall the events for which he is charged, and

certainly would be prejudiced in defending himself at trial due [sic] as a

result.” Trial Court Opinion, 2/9/20, at 4. In our view, the record fails to

support the trial court’s findings. Here, as in Kerrigan, Humphrey has offered

no evidence to that effect.

First, with regard to the court’s finding that Humphrey is unlikely to

regain competence, we observe that the language of § 7403(e) does not

contemplate dismissal of charges based on a finding that the defendant is

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unlikely to regain competency in the future. See Humphrey, 283 A.3d at

296 (Brobson, J., concurring). In any event, the evidence of Humphrey’s

incompetency was fifteen months old as of the February 7, 2020 hearing.

Nothing in the record establishes whether Humphrey’s condition remained

constant or declined after the initial competency evaluation. According to Dr.

Wright’s June 27, 2019 assessment (which was not an evaluation of his

competency to stand trial), Humphrey’s misbehavior was deliberate, goal-

driven, and not the result of serious mental illness. Further, Dr. Wright

testified that Humphrey was seen regularly by DOC psychiatrists and

psychologists. But because the trial court did not order periodic reevaluations

of Humphrey’s competency, we cannot discern whether and to what extent

the psychiatric and psychological treatment was successful.

Second, with regard to the trial court’s findings that resumption of

prosecution would be unjust due to the passage of time, there is no evidence

that Humphrey’s mental health issues will compromise his ability to recall

events or assist in his defense if and when he regains competence. Dr.

Scotilla’s written evaluation does not address this issue. Nor is there any

evidence of missing witnesses or other evidentiary problems that have arisen

or will arise due to the passage of time. The trial court’s findings on these

points were purely speculative. Furthermore, we observe that § 7304(f)

permits (but does not require) pending charges to remain for the duration of

the applicable statutory maximum sentence, in this case seven years. Thus,

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the mere passage of time is not, of itself, a sufficient basis for dismissal under

§ 7403(e). For the foregoing reasons, we conclude the evidence was not

sufficient to support dismissal of the pending charges.

In the remaining issue on remand, the Commonwealth argues that the

trial court erred in dismissing the charges without ordering a reevaluation of

Humphrey’s competency. We agree, given the plain and unambiguous

statutory mandate:

(c) Defendant’s Right to Counsel; Reexamination.--A
person who is determined to be incompetent to proceed shall have
a continuing right to counsel so long as the criminal charges are
pending. Following such determination, the person charged
shall be reexamined not less than every 90 days by a
psychiatrist appointed by the court and a report of
reexamination shall be submitted to the court and to
counsel.

50 P.S. § 7403(c) (emphasis added). In addition, we note the Kerrigan

Court’s observation (under a similarly worded predecessor to current

§ 7403(c)):

In the future, subsection (c) will require psychiatric
examinations and the submission of reports to the court every
ninety days. This guarantees continuing consideration of
appellant’s progress, or the lack thereof, and will enable the court
to take prompt action in the event of material change in the
condition of appellant's mental health.

Id. at 732. As of this writing, Humphrey’s most recent competency

examination took place more than four years ago, on November 7, 2018. On

remand, should the parties proceed further, the trial court must issue an order

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in accordance with § 7403(c) so that Humphrey undergoes periodic

competency evaluations for as long as his incompetency to stand trial remains.

Based on all of the foregoing, we vacate the trial court’s orders and

remand for further proceedings in accordance with this memorandum and with

our Supreme Court’s opinion in this matter. We reach our decision without

prejudice to Humphrey’s ability to file new motions to dismiss. We anticipate

that the disposition of any such motion will require further development of the

record including, at a minimum, an evaluation of Humphrey’s present ability

to undergo trial.

Orders vacated. Case remanded. Jurisdiction relinquished.

Judge Strassburger did not participate in the consideration or decision

of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/3/2023

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