Appeal, No. 250, Jan. T., 1956, from order of Court of Oyer and Terminer of Warren County, Feb. T., 1954, No. 1, in case of Commonwealth of Pennsylvania v. Norman W. Moon. Order affirmed. Proceeding upon order of Supreme Court remanding record for reexamination of report of Sanity Commission and other evidence after reversal of order of lower court finding defendant not proper subject for commitment and directing that proceedings continue, following verdict of guilty of murder in the first degree, with penalty fixed at death. Before FLICK, P.J. Order entered directing that proceedings continue; exceptions to order dismissed and final order entered. Defendant appealed.
Edward Dumbauld, with him Thomas A. Waggoner, Jr., Samuel D. Braemer, John Duggan, Jr., and E. H. Beshlin, for appellant.
Frank P. Lawley, Jr., Deputy Attorney General, with him Harrington Adams, Deputy Attorney General, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
On January 13, 1954 the appellant Norman W. Moon appearing before the Court of Quarter Sessions of Warren County on a charge of failure to comply with a support order, shot and fatally wounded the Honorable ALLISON D. WADE, President Judge of the 37th Judicial District. Following his apprehension appellant was indicted, tried and on May 25, 1954 convicted of murder in the first degree. The jury rejected his sole defense of insanity and fixed the penalty at death. About two months thereafter, on July 31, 1954, while appellant was confined in the Warren County Jail pending disposition of his motion for new trial, the county sheriff as keeper of the jail petitioned the court for the appointment of a commission under The Mental Health Act of June 12, 1951, P.L. 533, as amended, 50 PS §§ 1071-1622. Without holding a hearing on the petition, the court on July 31, 1954 appointed a commission composed of two physicians and an attorney to investigate appellant's mental condition. After examining the defendant and holding hearings at which testimony and statements were taken, the commission on October 13, 1954 filed its report with the court in which it found that Moon was mentally
ill, the illness being diagnosed as dementia praecox of the paranoid type, an illness chronic and continuing, and that he was a proper subject for commitment to a mental hospital. The commission also found that with the exception of two periods of acute mental disturbance, one at the time of his commitment and the other after the commission first met, both of which disturbances promptly subsided, appellant "... knew why he was in jail ..., knew that he faced a sentence in accordance with the jury verdict ..., knows that he is on trial for his life ..., recalls his trial ..., admits that no one is justified in taking anyone lese's life ..., knows that it is not right to shoot anybody ..., and what the consequences of his acts might be ...". The court after reviewing the report of the commission and the evidence on which it was based, was not satisfied that the defendant was a proper subject for commitment and directed that the proceedings in his case should continue. In arriving at this conclusion the court applied the law as it existed prior to the enactment of The Mental Health Act of 1951. The defendant appealed to this Court and in a decision handed down October 5, 1955, see 383 Pa. 18, 117 A.2d 96, we held that The Mental Health Act of 1951 had changed the test to be used in staying criminal proceedings and that the test prescribed by it was whether the defendant had a mental illness which so lessened his capacity to use his customary self-control, judgment and discretion in the conduct of his affairs and social relations as to make it necessary or advisable for him to be under care. We therefore remanded the record and directed the court to re-examine the commission's findings and recommendation and to reconsider the evidence "together with additional relevant evidence" in the light of the statutory definition of mental illness.
Thereafter counsel for the Commonwealth requested the court to fix a hearing to receive additional relevant evidence as to the defendant's conduct between the time of his examination by the commission and the filing of the opinion of this Court, a period of approximately fifteen months. The court notified the defendant's counsel of the Commonwealth's request for hearing and the nature of the testimony it proposed to produce and suggested that a date for hearing be agreed upon far enough in the future to afford counsel for the defendant opportunity to determine and prepare any evidence which he might desire to produce at such hearing. Counsel for the defendant and the Commonwealth agreed on December 12, 1955 as the date for hearing. At this hearing seven employes of the Western State Penitentiary to which defendant had been removed in April, 1955 testified, namely, the warden, the prison doctor, the three guards who had been continuously in charge of the defendant in eight-hour shifts, a guard who supervised visits from members of the defendant's family, and the guard who read all letters written by the defendant in his capacity as mail censor. At the completion of their testimony defendant's counsel advised the court that he had no testimony to offer. The prison doctor testified that he made a physical examination of the defendant upon his admission and thereafter saw him at least once a week; that defendant was well nourished and physically active; that aside from an affliction in the middle ear which caused a ringing in the ears, and a few stomach upsets which were easily controlled, the defendant was physically well; that he observed the defendant at times reading in his cell and at times in the exercise yard playing games with other prisoners. The warden testified that the defendant participated in the exercise periods, both morning and evening; that he obtained
books and magazines from the library, corresponded with his family and friends, and purchased items from the prison commissary; that he was visited once a month by various members of his family, and once each day by someone from the medical department as were all others confined in the isolation block; that the defendant had requested and received visits from the prison chaplain. The three guards who were in charge of the defendant at all times except some Saturdays and Sundays, testified to numerous contacts and conversations with the defendant and observed him continuously for almost eight months; that his conversation and all his actions were normal and that they noted no unusual or abnormal conduct; that he regularly drew from the prison library at least three books a week, sometimes six; that he subscribed to two magazines, "The Argosy" and "Hunting and Fishing"; that he also had access to and read other magazines such as "Life" and "Time"; that he shaved regularly; that he didn't smoke. One of the guards, Lieutenant King, testified that he supervised visits which defendant received from his mother and brother; that there were no restrictions on defendant's visiting privileges and the visits lasted about a half hour under his constant supervision. William E. Holmes, who was mail censor of the prison, testified that he read all letters written by the defendant which were about sixty in number; that he wrote to his father, mother, brothers and an aunt, and to a former employer; that nothing unusual was noted in any of the letters and that no items were included which had to be stricken out. This witness testified that he noticed nothing in connection with the letters which might indicate a lack of self-control or judgment or discretion, and all of the witnesses similarly testified with respect to the defendant's conduct generally, which was normal throughout.
No complaint of misconduct on the part of the defendant was ever made. All of the witnesses had been associated with the Western State Penitentiary for periods ranging from five to thirty-two years.
Thereafter the court filed an opinion and the following order: "And now, January 28, 1956 the Court having reexamined the findings and recommendation of the Sanity Commission appointed in this case, and having reconsidered the evidence together with additional relevant evidence, as directed by the Supreme Court of Pennsylvania, and for the reasons set forth in the foregoing Opinion, and upon consideration of the entire record in the case, and the Court not being satisfied that the defendant is mentally ill as defined in the Mental Health Act of 1951 and the standards set by the Supreme Court in this case, it is hereby Ordered that proceedings in this case shall continue and any additional reasons for a new trial shall be filed forthwith.". Exceptions thereto were dismissed after argument and a final order entered on March 29, 1956 affirming the earlier order. This appeal followed.
In construing The Mental Health Act of 1951 we stated in our disposition of the prior appeal (383 Pa. at p. 28): "... the controlling factor is the degree or extent to which the mind is affected by the mental disorder and not the bare existence of symptoms which would induce a psychiatrist to diagnose a mental illness. ...", and that the determinative issue is whether the illness so lessened the defendant's capacity to use his customary self-control, judgment and discretion as to render it necessary or advisable for him to be under care. This we held to be the standard which the Legislature promulgated to guide the commission and the court. The commission found the defendant had a mental illness and was a proper subject for commitment to a mental hospital. It does not appear that
the commission applied the standard prescribed by the Legislature, but as we said in the earlier appeal at p. 29: "Assuming the commission found appellant a proper subject for commitment under this standard, its findings while persuasive were nevertheless advisory only and not mandatory upon the court, for under Section 345(d) of the Act it is the court and not the commission which must be satisfied that appellant is mentally ill under the standard prescribed. It follows that the court in the instant case could have rejected, although not arbitrarily or capriciously, the commission's findings and conclusions and could have independently determined from the evidence that appellant's capacity to use his customary self-control, judgment and discretion had not been so lessened that it was necessary or advisable for him to be under care. ...".
The appellant argues that the testimony of the witnesses connected with the Western State Penitentiary should not have been admitted. This argument is part and parcel of the major contention made at oral argument and in the brief of appellant's counsel that the defendant's conduct throughout as it bore on the exercise of his self-control, judgment and discretion, was a matter solely for interpretive determination by medical experts - a medical issue which the commission, two of the three members of which were qualified medical experts, conclusively decided. This contention flies in the face of all of our decisions. We have repeatedly and invariably hald not only that testimony of laymen as well as experts is admissible in determining the mental status of a criminal defendant but that all of such testimony is for the consideration of the legal tribunal, be it court or jury, which has the ultimate determination of the issue: Commonwealth v. Lance, 381 Pa. 293, 113 A.2d 290; Commonwealth v.
reviewed the record and are convinced that the court did not abuse its discretion in reaching such conclusion.
The appellant also contends that the court erred in excluding certain evidence. As to this the record nowhere discloses that any request was made of the court to hear witnesses on defendant's behalf. At the completion of the testimony of the witnesses from the Western State Penitentiary at the hearing on December 12, 1955, counsel for defendant expressly stated that "The defendant has no testimony to offer, if the Court please." As before stated, the court advised defendant's counsel that the date of hearing for taking additional testimony would be fixed far enough in the future to afford opportunity for counsel to prepare any evidence which they might desire to produce at the hearing.*fn2 Therefore it is surprising to find in the
exceptions filed to the court's ruling of January 28, 1956 complaint that defendant should have been afforded but was denied an opportunity to submit additional evidence from medical experts. These exceptions could have been dismissed summarily. Assuming, however, that such a request was informally made, possibly during oral argument on the exceptions inasmuch as the court in its opinion indulgently considered the matter, the hearing of additional testimony was discretionary with the court as indeed is the appointment of a commission in the first instance (Commonwealth v. Gossard, 385 Pa. 312, 123 A.2d 258, and cases cited therein) and we find no abuse of discretion. If the court were required to reopen the proceedings for the
introduction of additional testimony by medical experts on defendant's behalf, by like token it would be obliged to hear additional testimony by medical experts offered by the Commonwealth in rebuttal. In fact there would be little power in the court to end the inquiry which could be indefinitely prolonged by the persistence and resourcefulness of counsel. The rights of the defendant as an offender on trial for an offense are not here involved. The inquiry is not an adversary proceeding to determine the guilt or innocence of the defendant but a collateral proceeding entirely apart therefrom to inform the conscience of the court as to the appellant's mental condition - not merely whether defendant had a mental illness or disorder in the opinion of psychiatrists or medical witnesses but, assuming that some mental illness existed, whether it so lessened his capacity to use his customary self-control, judgment and discretion in the conduct of his affairs and social relations as to make it necessary or advisable for him to be under care. This was for the evaluation of the court and the extent of the inquiry was within its discretion. It cannot be said that the wide scope of the court's inquiry, above outlined, which included consideration of the opinions of several impartial qualified medical experts, was insufficient to inform the conscience of the court as to the defendant's mental status under the test or standard prescribed by The Mental Health Act.
We are fully satisfied that the court did not commit any error of law or abuse its discretion in refusing to commit defendant to a mental hospital and in directing that the ...