COMMONWEALTH OF PENNSYLVANIA v. ROBERT DIAMOND (2011)

I strongly disagree with the Court's extraordinary approach of injecting weighty constitutional issues into this capital matter, sua sponte, especially where neither of the parties has even hinted that such issues are implicated herein.   Indeed, this Court generally refrains from reaching constitutional issues if the question before the Court may be resolved on an alternative basis,^{1 2}

FOOTNOTES

FN1. See Commonwealth v. Karetny, 880 A.2d 505, 519 (Pa.2005);  Commonwealth v. Hughes, 865 A.2d 761, 783 n.24 (Pa.2004);  In re Fiori, 673 A.2d 905, 909 (Pa.1996)..  FN1. See Commonwealth v. Karetny, 880 A.2d 505, 519 (Pa.2005);  Commonwealth v. Hughes, 865 A.2d 761, 783 n.24 (Pa.2004);  In re Fiori, 673 A.2d 905, 909 (Pa.1996).

FN2. I express no disagreement with the Court's order:  (1) denying Appellant Robert Diamond's petition to stay the proceedings during Appellant's incompetency;  (2) remanding the matter for a hearing to determine competency;  (3) directing the parties and trial judge to address the appropriate standard for assessing the competency of a capital defendant to proceed with a direct appeal;  and (4) directing the parties and trial court to address whether a capital defendant must be deemed competent under that standard before a direct appeal may proceed.   Respecting these issues, however, I note that, at this juncture, the parties' advocacy is somewhat cursory.   To aid in this Court's resolution of these significant issues, I would also instruct the parties, with respect to the question of the appropriate standard for assessing the competency of a capital defendant to proceed with a direct appeal, to address, inter alia, the following decisions:  Commonwealth v. Zook, 887 A.2d 1218 (Pa.2005);  Commonwealth v. Haag, 809 A.2d 271 (Pa.2002);  In re Heidnik, 720 A.2d 1016 (Pa.1998);  Commonwealth v. Silo, 364 A.2d 893 (Pa.1976);  and Ford v. Wainwright, 477 U.S. 399 (1986).   Concerning the issue of whether a capital defendant must be deemed competent under that standard before the direct appeal may proceed to decision, or whether the appeal may proceed upon the issues of record identified and briefed by counsel, I would instruct the parties to discuss, inter alia, the following decisions:  Commonwealth v. Haag, 809 A.2d 271 (Pa.2002);  Commonwealth v. Passaro, 476 A.2d 346 (Pa.1984);  Commonwealth v. Silo, 364 A.2d 893 (Pa.1976);  Fisher v. State, 845 P.2d 1272 (Okla.Crim.App.1992);  People v. Kelly, 822 P.2d 385 (Cal.1992);  Nash v. Ryan, 581 F.3d 1048 (9 th Cir.2009);  and Holmes v. Buss, 506 F.3d 576 (7 th Cir.2007)..  FN2. I express no disagreement with the Court's order:  (1) denying Appellant Robert Diamond's petition to stay the proceedings during Appellant's incompetency;  (2) remanding the matter for a hearing to determine competency;  (3) directing the parties and trial judge to address the appropriate standard for assessing the competency of a capital defendant to proceed with a direct appeal;  and (4) directing the parties and trial court to address whether a capital defendant must be deemed competent under that standard before a direct appeal may proceed.   Respecting these issues, however, I note that, at this juncture, the parties' advocacy is somewhat cursory.   To aid in this Court's resolution of these significant issues, I would also instruct the parties, with respect to the question of the appropriate standard for assessing the competency of a capital defendant to proceed with a direct appeal, to address, inter alia, the following decisions:  Commonwealth v. Zook, 887 A.2d 1218 (Pa.2005);  Commonwealth v. Haag, 809 A.2d 271 (Pa.2002);  In re Heidnik, 720 A.2d 1016 (Pa.1998);  Commonwealth v. Silo, 364 A.2d 893 (Pa.1976);  and Ford v. Wainwright, 477 U.S. 399 (1986).   Concerning the issue of whether a capital defendant must be deemed competent under that standard before the direct appeal may proceed to decision, or whether the appeal may proceed upon the issues of record identified and briefed by counsel, I would instruct the parties to discuss, inter alia, the following decisions:  Commonwealth v. Haag, 809 A.2d 271 (Pa.2002);  Commonwealth v. Passaro, 476 A.2d 346 (Pa.1984);  Commonwealth v. Silo, 364 A.2d 893 (Pa.1976);  Fisher v. State, 845 P.2d 1272 (Okla.Crim.App.1992);  People v. Kelly, 822 P.2d 385 (Cal.1992);  Nash v. Ryan, 581 F.3d 1048 (9 th Cir.2009);  and Holmes v. Buss, 506 F.3d 576 (7 th Cir.2007).

MADAME JUSTICE TODD