No. 1052 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 280/285 July Term, 1974.
Sharon K. Wallis, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files an opinion in support of affirmance in which Price and Van der Voort, JJ., join. Hoffman, J., files an opinion in support of reversal in which Jacobs, President Judge, and Spaeth, J., join. Watkins, former President Judge, did not participate in the consideration or decision of this case. The above case was decided prior to the retirement of Hoffman, J.
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The six Judges who decided this appeal being equally divided, the judgment of sentence is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
This is an appeal from a judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division. Appellant was convicted, after a non-jury trial, of simple assault, aggravated assault, possession of an instrument of crime, possession of a prohibited offensive weapon, resisting arrest, and recklessly endangering another person. He received two years' psychiatric probation. The sole issue on this appeal is whether appellant's sanity was proved beyond a reasonable doubt. I conclude that it was.
The facts of the criminal episode are summarized as follows in the opinion of the court below.
"[O]n May 19, 1974 at 3:20 A.M. the defendant was lying in the street on the Northwest corner of 42nd & Ludlow Streets, Philadelphia, Pa. clad in only pants and tee shirt. Acting upon information received, two police officers arrived at the scene and thinking the defendant intoxicated, attempted to arouse him. At first there was no response from the defendant. However, within a matter of seconds the defendant leaped to his feet wielding a long automobile bumper jack which had been concealed beneath him. The defendant swung the jack at one of the officers who
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drew his revolver and told the defendant to drop the jack, that he was under arrest. Meanwhile, the other officer was on the radio calling for assistance. The defendant then ran down the street and into a house at 12 So. 42nd Street, pursued closely by the officers. The officers followed the defendant into the dining room and again told him to drop the jack. The defendant was wide eyed and unresponsive. Within minutes approximately 6 more officers arrived. Defendant moved into the unlit kitchen standing with his back to the wall poised with the bumper jack in his hands. The officers were congregated in the doorway of the kitchen and one of them turned on the light. At that time the defendant was about 5 ft. from the officers when he suddenly screamed loudly and lunged at the officers with the jack raised in a swinging gesture. Fearing for their safety and lives the officers fired at the defendant. The defendant fell wounded and was then taken to the hospital where he eventually recovered from his injuries."
Appellant presented psychiatric testimony, discussed infra, to support his contention of insanity.
The test for insanity was described in Commonwealth v. Demmitt, 456 Pa. 475, 481, 483, 321 A.2d 627, 631, 632 (1975):
"The law in Pennsylvania is still the M'Naghten test. It is not intended to separate the emotionally disturbed defendants from the emotionally healthy. Rather, it is intended to include defendants, both disturbed and healthy, among those who are held criminally responsible. For it to appear that defendant is not sane the evidence must meet one of the two parts of the M'Naghten test; that is, at the time he ...