Appeal, No. 118, March T., 1956, from order of Court of Oyer and Terminer of Cambria County, Dec. T., 1954, No. 11, in case of Commonwealth of Pennsylvania v. Harry Gossard. Order affirmed.
Thomas D. McBride, with him John Rogers Carroll, Raymond J. Bradley, Michael von Moschzisker, Marjorie Hanson Matson, and McBride, von Moschzisker & Bradley, for appellant.
David C. Wolfe, District Attorney, for appellee.
Before Stern, C.j., Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
The questions involved in this case are: (1) Whether § 345 of the Mental Health Act of 1951 makes the appointment of a Commission mandatory, upon the filing of a petition and a psychiatrist's report that the petitioner
is mentally ill; and (2) Whether the refusal to appoint a Commission under the facts in the instant case constituted an abuse of discretion.
Defendant was convicted of murder of the first degree with sentence of death. He was represented at the trial by two able experienced counsel. The judgment was affirmed by this Court on appeal. A petition for clemency (commutation to life sentence), accompanied by the report of defendant's psychiatrist, Dr. Leopold, was considered and dismissed by the Board of Pardons. Subsequently, the present petition and supplemental petition for the appointment of a Commission under the Mental Health Act of 1923, as amended in 1951, was filed in the trial Court. Thereafter (according to the petitioner), a "hearing was held before the court at which evidence was presented and argument heard. On the same day the court entered its order denying the appointment of a Commission. Petitioner appeals from this action of the Court."
Defendant was and has been since early youth a sodomist. He was 39 years old and weighed 200 pounds. He was convicted of murder, not because of the commission of sodomy, but because the Commonwealth proved that he attempted to rape (Karen) a six year old child and in the commission of that act the little girl was suffocated.*fn1 Before any further discussion of the facts or analysis of the psychiatric reports, we deem it wise to state the applicable principles of law.
Sections 344 an 345 of The Mental Health Act of June 12, 1951, P.L. 533, 50 PS §§ 1224, 1225, which amended § 308 of the Act of July 11, 1923, pertinently provide: "(1) Any person detained in any penal or correctional institution who is thought to be mentally ill ... [may, by the superintendent, warden, jail physician
... or by any responsible person make application in writing for commitment to a mental hospital].
"Upon receipt of an application, the court shall order an examination of the person sought to be committed by two qualified physicians or a commission."
This Court construed this provision of the Act of June 12, 1951 - i.e., an examination of the petitioner - to be discretionary, not mandatory: Commonwealth v. Patskin, 375 Pa. 368, 372, 100 A.2d 472. Section 308 of the Act of July 11, 1923, supra, contained a similar "shall" provision which required the appointment of two physicians or a commission to determine the sanity and mental condition of the petitioner, and that provision was similarly construed by this Court to be discretionary not mandatory: Commonwealth v. Barnes, 280 Pa. 351, 124 A. 636; Commonwealth v. Scovern, 292 Pa. 26, 140 A. 611. The reasons for so holding are aptly stated in the Court's opinion in Commonwealth v. Scovern and those reasons are equally applicable in the present case.
In Commonwealth v. Scovern, 292 Pa., supra, appellant was convicted of murder of the first degree and the jury fixed the penalty at death. When arraigned for trial his counsel moved for a stay of proceedings and the appointment of a Commission to preliminarily inquire into the prisoner's present mental condition.
The petition was made by the resident jail physician and was supported by the affidavit of an alienist and stated defendant was not sane enough to make a defense. It was presented under § 308 of The Mental Health Act of 1923, P.L. 998. The Court refused to appoint a Commission and its decision was sustained by this Court which said: "The question before us is whether, under the circumstances, there was an abuse of discretion in refusing to appoint the commission, or whether
a prisoner has in any case a legal right, under the Act of 1923, to demand an inquiry into his sanity.
"A person who, by reason of his insanity, is unable to comprehend his position and to make a rational defense cannot be tried on a criminal charge while in that condition. There must be reasonable grounds on which to base an inquiry as to insanity, and a method of ascertaining the fact.
"... 'When any person detained in any prison ... waiting trial ... shall, in the opinion of the superintendent, jail physician, warden, or other chief executive officer of the institution or other responsible person, be insane, ... the ... superintendent ... shall immediately make application ... to a law judge ... for a commitment of [the] ... person to a proper hospital .... The said judge shall*fn2 ... order an inquiry by two qualified physicians, or by a commission ... who shall ... make written report ... if, in their opinion, the person so detained is insane .... The said judge may, in his discretion, summon other witnesses and secure further evidence. If he is then satisfied that the person thought or alleged to be insane is in fact insane, he shall order ... removal.'
"... If, where a petition is presented, the court must ultimately be satisfied of insanity, is it not fair to assume that the legislature intended that the facts and circumstances averred or known should be such that the court would ultimately approve an order of sanity based on such facts and circumstances? This must be so, as it is not to be supposed the legislature intended the judge to do a vain thing. ...
"If the judge was compelled, under the Act of 1923, to grant an inquiry in all cases, the act would be used as a subterfuge to ...