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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
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[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.
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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 
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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 disability3(“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).)
J. A26026/15

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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.
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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.
J. A26026/15

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/22/2015