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decided: October 28, 1975.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1973, No. 957, in case of Commonwealth of Pennsylvania v. John Webb.


Andrea Commaker Levin and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Frank X. Francek, 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. Opinion by Van der Voort, J. Concurring Opinion by Jacobs, J. Watkins, P.j., joins in this concurring opinion. Dissenting Opinion by Cercone, J. Hoffman, J., joins in this dissenting opinion. Concurring and Dissenting Opinion by Spaeth, J.

Author: Van Der Voort

[ 237 Pa. Super. Page 132]

Appeal is taken to this Court from judgment of sentence rendered by Judge M. Marshall following jury trial lasting from January 17, 1974, through January 24, 1974. Appellant had been indicted on a charge of prison breach,*fn1 and he was found guilty. Necessarily pertinent to this conviction is appellant's prior conviction, at Philadelphia County Common Pleas No. 530 February Term, 1969, pursuant to which appellant was incarcerated at the time of the prison breach.

The facts elicited at the trial regarding the prison breach were entered by stipulation. It appears that appellant on June 29, 1970, was sentenced to imprisonment at the State Correctional Institution at Graterford for not less than two nor more than eight years. On August 27, 1971, appellant was transferred to the Southeastern Region Community Center in Philadelphia, a community

[ 237 Pa. Super. Page 133]

    facility under supervision of the Bureau of Corrections. From there, appellant had taken part in a certain amount of community involvement, with the purpose being his rehabilitation. On October 13, 1971, appellant left the center without permission and did not return. On May 30, 1973, pursuant to extradition procedures, appellant was returned to Pennsylvania from New Jersey. With the exceptions of the introduction of a number of unopposed exhibits and rebuttal testimony of one Charles A. Klein, Esq., who had been Assistant District Attorney in charge of prosecuting the first-mentioned case against appellant, this stipulation constituted the Commonwealth's case. Extensive testimony was offered by appellant and his many witnesses pertinent to attempt to prove an insanity defense.

Appellant's first argument is that the trial court erred by permitting testimony that at appellant's 1970 trial, he did not present a defense of insanity. Appellant calls prejudicial and irrelevant the testimony to this effect by the then-prosecuting Assistant District Attorney Klein. The question becomes whether or not this testimony might have contributed to appellant's present conviction in the face of his right to remain silent. See Commonwealth ex rel. Whiting v. Cavell, 244 F. Supp. 560 (D.C. Pa. 1965), and Amendment 5, United States Constitution. The testimony was offered by the Commonwealth in an effort to rebut appellant's defense. Appellant correctly states that the issue under discussion is his possible insanity at the time of the prison breach. Insanity is a mental condition which may manifest itself during one's life and lead him to commit acts for which his legal responsibility is nullified. In a criminal prosecution, the Commonwealth must be afforded every reasonable opportunity to offer testimony contrary to a defendant's insanity defense when such is placed in issue. Because the condition may be a continuing one, testimony either in rebuttal or in chief may be properly received to show

[ 237 Pa. Super. Page 134]

    whether or not in the past a defendant has shown manifestations of insanity, or has argued that he was insane. The reason such testimony is allowed in rebuttal is that prior acts inconsistent with presently alleged insanity tend to rebut the claim of insanity. An opportunity for this rebuttal is provided by the prosecution's attempting to show that at previous, recorded times, the defendant did not claim insanity. Evidence of the failure to raise an insanity defense at a prior trial in which the defendant was sane may be admitted properly by the trial judge and the admission of such testimony does not violate the defendant's right to remain silent. We hold that the lower court in this case did not abuse its discretion in allowing testimony concerning the absence of prior claims of insanity by appellant.*fn2

Appellant's second argument is directed toward the charge of the trial judge. One part of the charge ...

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