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decided: December 11, 1974.


Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Oct. T., 1973, No. 341, in case of Commonwealth of Pennsylvania v. Fred Butler.


Kingsley A. Jarvis, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, with him Milton O. Moss, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 232 Pa. Super. Page 286]

The defendant, Fred Butler, a guard in Montgomery County Prison, was indicted for assault and battery and aggravated assault and battery of Dennis Keyser, and assault and battery of Joseph Rock, both complainants being prisoners in the institution which employed the defendant. A jury returned a verdict of not guilty of the charges involving Dennis Keyser and guilty of those involving Joseph Rock. Defendant appeals citing a number of alleged trial errors and an excessive sentence. We find these contentions to be without merit for the reasons set forth below and therefore affirm the lower court.

The incident giving rise to this appeal occurred on February 13, 1972, while defendant was performing his duties as a guard in Montgomery County Prison. In this capacity, he addressed some taunting remarks to a prisoner, Dennis Keyser, who had been having difficulty exercising the shower privileges allowed him for assisting in the prison work. The exchange readily flared up into a physical encounter between the two, other guards arrived and the prisoner was forcibly taken to a maximum security confinement cell. In the process of undressing to put on the regulation coveralls, the prisoner received further physical abuse from the defendant in the nature of kicks and blows which was explained as being required to subdue the prisoner. After this was accomplished and the guards were departing, the defendant turned to the other inmates present in the cell and challenged them to say something Joseph Rock responded from a corner, "Freddie, I'm surprised at you." This statement was answered by the defendant with at least one blow to Joseph Rock. Defendant maintains that he struck Rock because the prisoner had his hands in the air and defendant feared for his own safety. Rock denies raising his hands.

[ 232 Pa. Super. Page 287]

On these facts defendant was found guilty only of simple assault and battery of Joseph Rock. On appeal, the first assignment of error is that the trial judge improperly refused to allow the introduction of evidence concerning the mental condition of the victim. Defendant's counsel attempted to elicit testimony from the victim himself regarding his mental history by asking, on recross examination, "Have you ever been involved in any mental problems?" A general objection was made to this question which was sustained without explanation, and defense counsel made no attempt to describe the nature of the evidence he expected in response.

The crucial determination that a trial judge must make in ruling on the admissibility of evidence of a witness's mental instability is whether it is related to the subject of the litigation or whether it affects the testimonial ability of the witness so as to impeach him.*fn1 The evidence can be said to affect the credibility of a witness when it shows that his mental disorganization in some way impaired his capacity to observe the event at the time of its occurrence, to communicate his observations accurately and truthfully at trial, or to

[ 232 Pa. Super. Page 288]

    maintain a clear recollection in the meantime. See Commonwealth v. Repyneck, 181 Pa. Superior Ct. 630, 124 A.2d 693, allocatur refused, 181 Pa. Superior Ct. xxiv (1956).

In the present case there is no indication on the record what, if anything, defense counsel hoped to elicit from the victim Joseph Rock by his allusion to mental problems. Appellant's brief indicates that the testimony was expected to reveal that Joseph Rock had been committed to a hospital for mental treatment for 60 days five months after the episode in question and was discharged one and one-half years before the trial. The lower court's opinion states that he was committed for treatment of a drug problem and depression. Such a difficulty, existing after the incident and significantly before trial, is not of the type that would ordinarily affect the witness's ability to observe, remember, or relate the events which are the subject of this litigation. Counsel has made no attempt to prove that the disorder for which the witness was treated was already in existence on the date in question or that it lingered ...

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