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decided: June 24, 1975.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1972, No. 1242, in case of Commonwealth of Pennsylvania v. James Dixon.


Lewis L. Maltby, Elaine DeMasse, and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Harry M. Spaeth, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Hoffman, J., filed an opinion in support of reversal, in which Spaeth, J., joins. Cercone, J., filed an opinion in support of reversal, in which Jacobs and Spaeth, JJ., join. Van der Voort, J., filed a dissenting opinion, in which Watkins, P. J., and Price, J., join.

Author: Per Curiam

[ 235 Pa. Super. Page 417]

Judgment of sentence reversed and the record remanded for a new trial.


Judgment of sentence reversed and record remanded for new trial.

Opinion in Support of Reversal by Hoffman, J.:

Appellant contends that his conviction should be reversed and a new trial granted in light of Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974), and Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974).*fn1

At approximately 7:30 p.m., on November 3, 1972, Officer Colella of the Philadelphia Police Department responded to a radio call that reported a disturbance in a bar located at 9th and Clearfield Streets in Philadelphia. The officer observed appellant wrestling on the floor with two other men. The officer left the bar to request additional

[ 235 Pa. Super. Page 418]

    assistance. In the interim, another officer, Edward McIlvaine, also answered the call. As Colella reentered the bar, he saw appellant attack McIlvaine with a bar stool. Appellant then knocked a woman from another stool and attacked Colella. The officers finally subdued appellant with their nightsticks. According to the officers' trial testimony, appellant carried on "like a wild man" throughout the incident.

After appellant was handcuffed, a third officer, Stanley Pables, transported the appellant to the emergency room of Episcopal Hospital. Both Pables and Edward Turner, a Nursing Assistant at the hospital who testified as a defense witness, stated that when the handcuffs were removed in the emergency room, appellant became "very wild" and that "he just went berserk."

Appellant was subsequently indicted and charged with assault and battery and resisting arrest. On February 22, 1974, the case was called for trial at which time appellant waived his right to a jury. On that date, the court heard all of the witnesses, including the appellant who gave his own account of the incident. The appellant did not contest the prosecution's account, but argued that he was not sane at the time of the incident. Appellant testified that he remembered having a couple of drinks in the bar and being struck from behind. The next thing that he recalled was waking up in the hospital. He admitted to having been hospitalized for seventeen days in 1968, at Trenton State Hospital for observation and for seven days in 1969, at Philadelphia General Hospital for treatment. After hearing appellant's testimony, the judge stated that he would defer adjudication and order a "total psychiatric workup." Finally, on May 15, 1974, appellant reappeared before the trial court which rejected appellant's claim of insanity and was found guilty on all bills. The court pronounced sentence of one to four years, to run concurrently, on the charges of assault and battery and assault and battery in resisting arrest.

[ 235 Pa. Super. Page 419]

The Supreme Court held in Commonwealth v. Rose, supra, that the Commonwealth has the burden in a first degree murder case of proving beyond a reasonable doubt the specific intent to kill. The Court held that it was reversible error to require that the accused prove his defense of intoxication by a preponderance of the evidence: ". . . the Commonwealth has an unshifting burden to prove beyond a reasonable doubt all elements of the crime. One of such elements in first degree murder is, of course, a specific intent to kill." 457 Pa. at 389, 321 A.2d at 884. In Commonwealth v. Demmitt, supra, the Court upheld the rule that the prosecution may prove a defendant's sanity by testimony of lay witnesses. See Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970). The Court did, however, underscore the principle of law that "the Commonwealth can no longer rely upon a presumption of sanity, but instead must offer evidence to show that [the accused] was sane." 456 Pa. at 483, 321 A.2d at 632. "When the question of sanity is at issue and the presumption of sanity has disappeared the evidence must be sufficient to support a finding of sanity beyond a reasonable doubt." 456 Pa. at 482, 321 A.2d at 631.

The Commonwealth contends that the holdings of Rose and Demmitt should not be applied retroactively. Essentially, the position of the Commonwealth is that because Rose was decided as a matter of state evidentiary law, its holding was not constitutionally mandated, and thus is not entitled to retroactive application. See, e.g., Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). There is language in Rose to support that conclusion: ". . . our decision need not rest on federal constitutional grounds. It is not necessary for us to speculate that the Winship [ In re Winship, 397 U.S. 358 (1970)] requirement of proof beyond a reasonable doubt of all essential ...

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