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decided: October 8, 1976.



Saxton, McKnight & Roberts, Richard Saxton, Lock Haven, for appellant.

Allan W. Lugg, Lock Haven, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion. Roberts, J., filed a dissenting opinion in which Manderino, J., joined.

Author: Jones

[ 468 Pa. Page 441]


On September 13, 1974, appellant, Dennis Vogel, was convicted by a jury of two counts of murder in the second degree and one count of armed robbery.*fn1 The Court of Common Pleas, Clinton County, Criminal Division, Judge Lipez specially presiding, sentenced appellant to serve two consecutive prison terms of not less than ten

[ 468 Pa. Page 442]

    years nor more than twenty years for the murder convictions and thereafter to serve from one day to ten years imprisonment on the armed robbery count. Following the denial of post-trial motions, appellant filed the instant appeal.*fn2

At issue is the propriety of the lower court's decision to admit, over defense counsel's objection, the expert testimony of Dr. Daniel W. Schwartz, a psychiatrist, who testified in rebuttal as to appellant's mental condition at the time of the commission of the crime. Intricately tied to appellant's argument that Dr. Schwartz's testimony should have been excluded for failure to meet the proper evidentiary standard of certainty, is the second argument advanced by appellant that the lower court abused its discretion in denying a new trial on the grounds that the jury verdict of guilty was against the weight of the evidence. Lastly, appellant urges that the admission of certain photographs depicting the victims as discovered by police was prejudicial error requiring the grant of a new trial. We shall discuss these three issues seriatim.

First, however, a brief factual history is warranted. On Wednesday, August 1, 1962, police responding to an emergency call, arrived at the W. T. Grant store located in Lock Haven, Pennsylvania, and discovered in the basement of the store the fatally wounded bodies of two employees, a Mr. Donald Atwood and a Mrs. Shirley Rechel. Both had been shot with a .22 caliber revolver several times. Upstairs, in the manager's office, police found the door to the safe open and its contents missing. Mr. Atwood was the store's office manager and Mrs. Rechel was his secretary.

Appellant Vogel was also employed by Grant's at the time, carrying out the duties of stock attendant and general maintenance worker. Although Vogel was on vacation from work, police investigation revealed that he had

[ 468 Pa. Page 443]

    been seen in the store earlier that day by a customer and was also seen by other people interviewed. Upon learning that Vogel had left later that afternoon with his wife and child on a car trip to Canada, Pennsylvania police sent out a teletype bulletin which was picked up by Canadian border authorities. Appellant was arrested in Ontario and returned to this jurisdiction after waiving extradition. Pursuant to a search warrant, officials discovered money and other items missing from the Grant store in the trunk of appellant's car.

Appellant did not deny killing Atwood and Rechel; however, his asserted defense to the crimes for which he was tried was that of not guilty by reason of insanity.

The Commonwealth sought to prove through the testimony of a variety of witnesses that the appellant planned the robbery of the Grant store well in advance of August 1; that he knew Grant's was closed to customer business regularly on Wednesday afternoons; that he was heavily in debt; that he deliberately lied to his exwife on the morning of August 1 as to the reason he was going into town; and that he planned to leave with his family for Canada immediately upon returning home on the afternoon of August 1 in order to avoid involvement in any police investigation of the crime. Appellant's exwife testified that he had warned her not to go near the trunk of the car on that Wednesday afternoon, giving the false excuse that she might overturn and damage a borrowed outboard motor he had placed in the trunk. In fact, there was no outboard motor in the trunk at all. Moreover, there was testimony given to the effect that appellant hated Atwood, his superior, and a pathologist further testified that powder burns around the bullet wound in Atwood's forehead indicated a killing at very close range.

Appellant's defense consisted of the testimony of his ex-wife to the effect that Vogel at times exhibited quite bizarre behavior and had sought psychiatric treatment.

[ 468 Pa. Page 444]

Additionally, the defense presented the expert testimony of three highly qualified psychiatrists. Two of the doctors' professional contact with appellant began as early as August of 1962. The third psychiatrist examined Vogel first in 1968. Each doctor concluded that in their medical opinion, appellant Vogel was indeed legally insane on August 1, 1962.

In rebuttal, the Commonwealth offered the testimony of Dr. Daniel W. Schwartz who, based upon a hypothetical question consisting of those facts presented by the prosecution in its case in chief, concluded: ". . . with a reasonable degree of medical certainty, at the time of the said offense, defendant was not suffering from mental illness or mental disease or defect that would prevent him from nor did it prevent him from knowing the nature ...

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