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decided: July 13, 1970.


Appeal from judgments of sentence of Court of Common Pleas of Clinton County, June T., 1962, No. 1, in case of Commonwealth v. Dennis M. Vogel.


Robert D. O'Connor, for appellant.

Allan W. Lugg, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones in Support of the Order Per Curiam. Mr. Justice O'Brien joins in this supporting opinion. Opinion by Mr. Justice Roberts in Support of the Order Per Curiam. Opinion by Mr. Justice Pomeroy in Support of the Order Per Curiam. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen joins in this dissenting opinion.

Author: Per Curiam

[ 440 Pa. Page 5]

Judgments of sentence reversed and new trial granted.


Judgments of sentence reversed and new trial granted.

Opinion by Mr. Justice Jones in Support of the Order Per Curiam:

On August 1, 1962, Dennis Vogel shot and killed two persons during the course of an armed robbery. Immediately thereafter, Vogel returned to his home, packed his car and, with his wife and infant child, drove to Canada for a previously planned vacation. On August 2, 1962, Vogel was arrested by Canadian officials in response to a radio communication from the Pennsylvania police. The police officers searched the trunk of Vogel's car and found the fruits of the robbery -- cash, money bags and green stamps.

At his trial, in the Court of Common Pleas of Clinton County, in February of 1968, Vogel pleaded not guilty by reason of insanity, producing in support of his insanity claim evidence of his discharge from the Air Force because of mental illness and the testimony of various lay and expert witnesses. No useful purpose would be served by a repetition of all of this voluminous testimony; it is sufficient that it be noted that, from his early teens, Vogel displayed erratic and often bizarre conduct. Illustrative thereof is the testimony of Vogel's former wife that she interrupted a war game Vogel was playing, with M & M candies representing soldiers, "He liked the green ones, I don't know why, but he had the greens on one side and the orange on the other side, and he would make all of the other colors move like troops to help the other side. Q. You mean like reserves or something like that? A. Yes, and so just for the fun I reached down and I grabbed an M & M and I popped it in my mouth and he got furious

[ 440 Pa. Page 6]

    at me because it wasn't dead yet. Q. The M & M wasn't dead yet? A. Yes, the M & M wasn't dead yet. It was not a soldier that was killed, in other words."

The defense offered the testimony of three eminently well-qualified psychiatrists to establish Vogel's legal insanity. Once again, the testimony being quite lengthy, I will not repeat it but merely quote the doctors' conclusions. Dr. Leslie R. Angus, the Assistant Superintendent of the Danville State Hospital, testified as follows: "A. My opinion is that he was unquestionably, legally insane at the time he was alleged to have committed this crime on August 1, 1962. Q. You say that without the slightest hesitation? A. Without the slightest hesitation." Dr. Bernard J. Willets, the Assistant Superintendent and Clinical Director of Farview State Hospital, treated the defendant for five and one-half years between the time of his arrest in 1962 to the time of his trial in 1968.*fn1 The doctor summarized his testimony as follows: "In my opinion, Dennis Vogel was legally insane at that time [August 1, 1962]." Dr. Robert Sadoff, a privately-practicing psychiatrist from Philadelphia, who was also the Clinical Director of the Forensic and Diagnostic Hospital at Holmesburg Prison, testified as follows: "My opinion, based on the facts, and based on my examination of him, [is] that he was legally insane, at the time, on August 1, 1962."

The Commonwealth offered no direct evidence which either rebutted or impeached any of the testimony as to Vogel's insanity. Rather, the prosecution relied upon the presumption of sanity and the testimony of various witnesses as to the circumstances surrounding the robbery and killings. Such testimony was summarized

[ 440 Pa. Page 7]

    by the court below, in its opinion, as follows: "Defendant's prior threats to kill the deceased Atwood [the manager of the store]; his debts and financial problems; the day before the killing he was seen across the street looking over the Grant store; the acts took place after 12 o'clock noon after the store was closed; after the killings ransacking the safe, taking over $800 in cash and taking Mrs. Rechel's pocketbook, and other items from the store; throwing away a .22 calibre revolver purchased by him sometime before the killings; within an hour after the crime fleeing with his wife and child to Canada; warning his wife not to look into the trunk where he had placed most of the stolen items; as the police were coming into the restaurant in Canada where he and his wife had gone to eat, attempting to pass a large roll of bills to his wife and when she refused to take it, to place it in her blouse."

The jury found Vogel guilty of armed robbery and on two counts of murder in the second degree, in spite of an adequate and comprehensive charge on the doctrine of felony murder. He was sentenced to serve ten to twenty years in prison for the armed robbery and for the first count of murder. He was further sentenced to life imprisonment on the second count of murder, the trial judge relying on the Act of June 24, 1939, as amended, December 1, 1959, P. L. 1621, § 1, 18 P.S. § 4701. The trial court dismissed Vogel's motion for a new trial, and he now appeals from the judgments of sentence.

I will first deal with Vogel's claim that Section 701 of The Penal Code, referred to above, is not applicable to a defendant charged with having committed multiple murders at or about the same time. Section 701 provides: "Whoever is convicted of the crime of murder of the second degree is guilty of a felony, and shall, for the first offense, be sentenced to undergo imprisonment by separate or solitary confinement not exceeding

[ 440 Pa. Page 8]

    twenty (20) years, or fined not exceeding ten thousand dollars, or both, and for the second offense, shall undergo imprisonment for the period of his natural life." (Emphasis added)

As employed in this statute, the term "second offense" means a subsequent murder, a murder which was committed after a conviction for a prior murder, and which was not part of the same transaction or occurrence which led to the first murder. Cf. Commonwealth v. Swingle, 403 Pa. 293, 169 A.2d 871, cert. denied, 368 U.S. 862 (1961). In order to increase the punishment for a second offense of second-degree murder, a prior conviction for murder must precede the commission of the second murder. The sentence of life imprisonment which was imposed by the trial court, on the second count of murder, was incorrect.

Appellant's second contention is that the trial court charged improperly on the burden of proving sanity.*fn2 Specifically, it is urged that the prosecution should have had the burden of proving sanity beyond a reasonable doubt, as a fact necessary to constitute the crime of murder.

Three views presently exist as to the quantum of evidence which is required to rebut the presumption of sanity in a criminal case. Annot., 17 A.L.R. 3d 146 (1968).

In the federal courts, the sanity of the defendant must be proven by the prosecution beyond a reasonable doubt, once the issue has been properly raised.*fn3

[ 440 Pa. Page 9]

    preponderance of the evidence." Commonwealth v. Carluccetti, 369 Pa. 190, 199, 85 A.2d 391, 395 (1952). Inherent in this rule is the rationale that sanity is not an element of the crime but, rather, involves the ability to understand and comprehend the right and the wrong of the commission of the crime, a state of mentality which would render punishment by way of confinement in a penal institution futile and would require institutional confinement of the defendant for treatment rather than for punishment. Cf. Act of October 20, 1966, Spec. Sess. No. 3, P. L. 96, art. IV, § 413, 50 P.S. § 4413. In my view, insanity is a defense upon the proof of which an accused may avoid punishment for the crime committed. As was pointed out in the case of Durham v. United States, 214 F. 2d 862, 876 (D.C. Cir. 1954), "[o]ur collective conscience does not allow punishment where it cannot impose blame."

In a jurisdiction which uses the "irresistible impulse" test to determine legal insanity, as redefined in Durham, id. at 874-75, the question of insanity, at the least, is closely connected with the question of whether the killing was intentional.*fn7 It may be appropriate, in such a jurisdiction, that the burden of proof as to both should be the same, since they are both concerned with what is clearly an element of the crime -- i.e., the intent to kill. In Pennsylvania, a person may be legally insane either if he is incapable of knowing what he was doing, or if he does know what he was doing but was incapable of judging that it was wrong to do so. Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98 (1960).

As indicated by the facts in the instant case, legal insanity in this Commonwealth may or may not bear on the question of intent. The prosecution presented

[ 440 Pa. Page 11]

    ample evidence that Vogel planned his crime, from which evidence intention might be inferred, but no evidence that Vogel could appreciate the character of his actions. An individual may intentionally kill someone, with malice aforethought, but be incapable of distinguishing right from wrong in so doing. Under such circumstances, the elements of murder would be met (Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963)), but the individual's legal insanity would properly necessitate a verdict of not guilty by reason of insanity. This is the type of situation which is demonstrated on the face of the instant record.

Appellant herein urges that this Court should overrule long-standing case law in Pennsylvania, and adopt the federal rule which would require the prosecution to prove sanity beyond a reasonable doubt, as an element of the crime. I cannot accept the premise that sanity is necessarily an element of every crime. To the contrary, I view insanity as being the basis upon which society offers treatment rather than punishment to one who has committed a crime. See H. Rome, M'Naghten, Durham and Psychiatry, 34 F.R.D. 93 (1964). Although every element of a crime can be established beyond a reasonable doubt, including the element of intent to do the act, insanity may still be asserted as a defense in Pennsylvania. Because of our abhorrence of punishing a man who could not evaluate his actions, if a defendant can demonstrate, by a fair preponderance of the evidence, that he was legally insane when he committed the crime for which he has been charged, he should be found not guilty by reason of insanity. See Commonwealth v. Updegrove, 413 Pa. 599, 198 A.2d 534 (1964).

We specifically decline to adopt the federal rule as to the burden of proving sanity or insanity. The burden remains on the defendant to prove his insanity by a fair preponderance of the evidence.

[ 440 Pa. Page 12]

The final point made by the appellant presents a most important issue which I believe to be of first impression in this Court: may one be convicted of murder, even though the Commonwealth, relying on the legal presumption of sanity, presents no direct evidence to contradict or impeach the testimony of witnesses, lay and expert, who unequivocally testify that, at the time of the homicide, the accused was legally insane within the definition of legal insanity under the M'Naghten rule?

The trial court answered this question in the affirmative, relying upon prior decisions of this Court wherein, I suggest, a genuine conflict existed between the evidence presented by the Commonwealth and that of the defendant. E.g., Commonwealth v. Updegrove, 413 Pa. 599, 198 A.2d 534 (1964); Commonwealth v. Carluccetti, 369 Pa. 190, 85 A.2d 391 (1952). In the case at bar, the Commonwealth offered no affirmative direct evidence bearing on the question of the defendant's sanity, i.e., the ability to distinguish between right and wrong at the time of the killings. The maximum that might be established by the testimony of the Commonwealth's lay witnesses is that the actions of the defendant were apparently intentional. Such testimony did not serve to rebut the defendant's proof of legal insanity, but merely established the circumstances of the crime and the events leading to the apprehension of the defendant. Accordingly, the verdicts are not supported by the evidence and must be set aside. Commonwealth v. Hazlett, 429 Pa. 476, 240 A.2d 555 (1968); Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968); Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). Cf. Act of June 15, 1951, P. L. 585, § 1, 19 P.S. § 871.

The defendant's expert and lay witnesses clearly, unequivocally and without contradiction testified to

[ 440 Pa. Page 13]

Vogel's legal insanity before, during and after he committed this crime. The Commonwealth offered no evidence to rebut this testimony, but relied upon certain circumstantial evidence (introduced during its case in chief), from which it might be inferred that Vogel intended to commit the crime. However, the fact that an individual intends to commit an act does not necessarily indicate that he has the ability to determine whether it was right or wrong to do that act.

In this Commonwealth, we have refused to participate in the war of psychiatrists which some authorities fear. See K. Menninger, The Crime of Punishment (1966). Thus, the mere fact that the Commonwealth has offered no expert witnesses to rebut those of the defense does not itself preclude a jury from finding the defendant to have been sane, provided that there is some evidence to substantiate the conclusion that he was legally sane -- i.e., that he could differentiate between right and wrong. Commonwealth v. Updegrove, 413 Pa. 599, 198 A.2d 534 (1964); Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963); Commonwealth v. Lance, 381 Pa. 293, 113 A.2d 290 (1955); Commonwealth v. Carluccetti, ...

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