Appeal, No. 62, March T., 1961, from judgment of Court of Oyer and Terminer of Allegheny County, Sept. T., 1959, No. 137, in case of Commonwealth of Pennsylvania v. John Francis Butler. Judgment affirmed; reargument refused August 31, 1961.
Marjorie Hanson Matson, with her H. David Rothman, for appellant.
Samuel Strauss, Assistant District Attorney, with him William Claney Smith, Assistant District Attorney, and Edward C. Boyle, District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN.
The defendant, John F. Butler, was indicted for murder. A jury trial under the "Split-Verdict Act" of December 1, 1959, P.L. 1621, § 1, 18 PS (supp.) § 4701, resulted in a verdict of guilty of murder in the first degree with the punishment fixed at death. A new trial was denied. From the judgment of conviction and sentence, this appeal is prosecuted.
The facts, as disclosed by the testimony, may be briefly summarized as follows: The defendant was sentenced to the Eastern State Penitentiary for a period of from four to ten years following his conviction in Northumberland County for armed robbery, involving five Catholic priests residing in a monastery in Mount
Carmel, Pennsylvania. In April 1959, he was confined under this sentence in the State Correctional Institution in Pittsburgh. He presented a petition for a writ of habeas corpus in the courts of Northumberland County alleging irregularities in his conviction and sentence. A hearing on this petition being ordered, the defendant was returned to that county to permit his attendance. The petition was then withdrawn upon the advice of counsel, who concluded the factual assertions therein were not true. On the following day, while being returned to the institution in Pittsburgh by James R. Lauer, the Sheriff of Northumberland County, in an automobile operated by an aide, one Martin Diehl, Butler shot and killed the sheriff. He escaped and was apprehended the following day.
Immediately before the shooting, the defendant was in the back seat of the automobile, restrained by handcuffs, which were fastened to a leather belt. Sufficient looseness was allowed to permit him to raise his hands for the purpose of smoking. Sheriff Lauer was sitting in the front seat with the driver; the sheriff's gun lying under a paper on the seat between them.
After leaving the Pennsylvania Turnpike at the Perry interchange, the party inadvertently made a wrong turn. It was raining very hard and visibility was poor. After inquiry, they turned around and were headed back in the direction of the institution, when suddenly the defendant "lurched" over the front seat and grabbed the gun. The sheriff, jumped into the back seat and tried to seize the defendant, yelling, "John, don't do it." The defendant said, "Let me go Jim or I'll kill you." The driver, Diehl, hurriedly pulled the car over to the side of the road, jumped out and opened the rear door. The sheriff was then lying on his side on the floor between the seats, with his head raised in the corner on the driver's side of the car. The defendant was on the back seat, crouched in the opposite
corner of the car. At that moment, the gun was fired.*fn1 The defendant said to Diehl, "I'll get you." The latter ran down the road for assistance and the defendant disappeared into the woods.
Several trial errors are urged in support of the contention for a new trial. We shall discuss them ad seriatim.
The testimony of the Commonwealth as to the incidents surrounding the fatal shooting was uncontradicted. The defendant did not take the stand or offer testimony in denial during that portion of the trial wherein his guilt or innocence was decided,*fn2 and at no time did he deny firing the fatal shot. The sole defense was insanity and the testimony offered in support of this was that of a psychiatrist, Dr. Jacobs, who first examined the defendant one year after the offense was committed. This witness also studied and considered the results of tests given by a psychologist; the reports and evaluations of both the Behavior Clinic of Allegheny County and the Diagnostic Clinic of the penitentiary; and, the defendant's case history. He opinionated that the defendant manifested "a personality pattern disturbance, schizoid personality, with socipathic features." He further expressed the belief that, at the exact moment the shooting occurred, the defendant was in a temporary state of confusion and panic and unable to understand the value and consequence
of his acts or to distinguish right from wrong. He also stated that, in his opinion, the defendant was legally sane at all times when he examined him, and legally sane at all times except for a short period of time during which the shooting occurred.
In rebuttal, the Commonwealth called as its witness a psychiatrist employed at the Mayview State Hospital. He testified that, during his examination of the defendant, he found no evidence of psychosis or neurosis of any type, nor any indication of mental irresponsibility. The Commonwealth also called as witnesses Dr. Davis, a psychiatrist, and Dr. Grove, a psychologist, both employed by the Allegheny ...