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COMMONWEALTH EX REL. DIEMILIO v. SHOVLIN (10/04/72)

decided: October 4, 1972.

COMMONWEALTH EX REL. DIEMILIO, APPELLANT,
v.
SHOVLIN



Appeal from order of Court of Common Pleas of Delaware County, No. 290 of 1972, in case of Commonwealth ex rel. Ralph C. DiEmilio v. John P. Shovlin, Superintendent of Farview State Hospital and the Department of Public Welfare of the Commonwealth of Pennsylvania.

COUNSEL

George P. Noel, with him Gibbons, Buckley & Smith, for appellant.

Philip J. O'Malley, Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, in propria persona, for Delaware County District Attorney.

Marx S. Leopold, Assistant Attorney General, with him J. Shane Creamer, Attorney General, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen and Mr. Justice Pomeroy concur in the result. Concurring and Dissenting Opinion by Mr. Chief Justice Jones.

Author: Roberts

[ 449 Pa. Page 178]

Appellant Ralph C. DiEmilio was arrested on March 20, 1970, and subsequently charged with the murder of his wife. Appellant's trial was delayed over a year while a determination was made as to his mental capacity to stand trial. The trial before a jury commenced on October 26, 1971. At the outset of the trial three psychiatrists, representing appellant, the district attorney, and the institution in which appellant was hospitalized after his arrest, unanimously testified that appellant was legally insane at the time of the crime in question as determined by the M'Naghten test.*fn1 After

[ 449 Pa. Page 179]

    hearing this testimony the trial court directed the jury to find appellant not guilty by reason of insanity. Thereafter the court committed appellant to Farview State Hospital, a maximum security mental institution for the criminally insane.

In a letter dated December 22, 1971, Dr. John P. Shovlin, Superintendent of Farview State Hospital, recommended to the trial court that appellant be transferred to Haverford State Hospital. The basis of this recommendation was Dr. Shovlin's considered professional judgment that appellant's illness did not require maximum security, and appellant's treatment would be facilitated by transfer to another institution. The transfer request was denied by the trial court and appellant thereupon instituted the present writ of habeas corpus, seeking transfer to another hospital pursuant to Dr. Shovlin's recommendation. After dismissal by the court of his writ of habeas corpus, appellant appealed to this Court. Because we find that the court, in denying the transfer request, erroneously relied upon repealed statutory provisions, we reverse and remand.

The court committed appellant and considered his transfer request under the terms of the Act of March 31, 1860, P. L. 427, § 66, as amended, 19 P.S. § 1351 (hereinafter Act of 1860).*fn2 That act by its language is

[ 449 Pa. Page 180]

    applicable to situations where the jury found that a defendant was "insane at the time of the commission of . . . [the] offense." The Act of 1860 specifically states that the court has the power to keep an individual in "strict custody . . . in such place and in such manner as to the said court shall seem fit. . . ." The act further provides that the defendant shall remain in "strict custody . . . so long as such person shall continue to be of unsound mind. . . ." The ...


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