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filed: January 30, 1981.


No. 555 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Schuylkill County, Pottersville, Pennsylvania at No. 857 Criminal Action 1977, No. 28 January Term, 1978.


H. Stanley Rebert, Public Defender, York, for appellant.

Richard H. Horn, Assistant District Attorney, York, for Commonwealth, appellee.

Hester, Montgomery and Cirillo, JJ.*fn*

Author: Montgomery

[ 284 Pa. Super. Page 175]

On January 23, 1978, appellant was convicted, after a jury trial, of attempted murder, rape, involuntary deviate sexual intercourse, aggravated assault, and recklessly endangering another person. Timely post-trial motions were filed and denied. Appellant was sentenced to undergo imprisonment for not less than 25 years nor more than 50 years at a state correctional institution. A petition for reconsideration of sentence was dismissed on February 20, 1979. This appeal ensued. We affirm.

The facts leading to prosecution in this case are as follows:

On July 13, 1977, at approximately 5:00 P.M., nineteen year old Penny Dietz was sitting on the steps of a church in York, Pennsylvania, waiting for her husband. Appellant opened the church door and invited the victim into the church. When Mrs. Dietz stepped inside, appellant began to choke her, saying "I'm going to kill you, then rape you." In the course of struggling with him, the victim and the appellant fell down a nearby stairway. Appellant then produced a single edged razor and slashed the side of the victim's throat twice, causing two four-inch wounds. Although he missed severing her jugular vein by 1/16th of an inch, as a consequence of the wounds he inflicted, the victim lost 50% of her blood during the ordeal. The appellant then dragged her into a large basement area and undressed her. He continued to choke her, and finally he raped her. At one point, he inserted his fingers into the wounds on her neck, and later, committed involuntary deviate sexual intercourse. Although the victim remained conscious the entire time, she feigned death. When her assailant momentarily left the room, she fled naked out the back door of the church to a nearby home. The police apprehended the appellant minutes later inside the church.

Appellant raises more than a dozen issues in his appeal, none of which have any merit. The first five issues concern the insanity of the appellant. Essentially, appellant contends that the Commonwealth failed to present sufficient

[ 284 Pa. Super. Page 176]

    evidence of sanity from which the jury could find appellant legally responsible for his criminal acts.

When there exists circumstances which raise the issue of insanity, the burden is upon the Commonwealth to establish appellant's sanity beyond a reasonable doubt. See Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976); Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979); Commonwealth v. Delker, 467 Pa. 305, 356 A.2d 762 (1976). It is unrefuted by the Commonwealth that the pretrial examinations as to appellant's mental health sufficiently shifted to the Commonwealth the burden of proving sanity. The definition in Pennsylvania for insanity is the M'Naughten test. If the appellant either did not know the nature and quality of his act or if he did not know that it was wrong, then he is legally insane. Commonwealth v. Hamilton, 459 Pa. 304, 329 A.2d 212 (1974); Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974). In describing this test, the Pennsylvania Supreme Court noted that:

"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 . . ." Commonwealth v. Demmitt, supra, 456 Pa. at 481, 321 A.2d at 631.

Thus, findings of mental illness alone do not necessarily mean that a defendant is legally insane. Commonwealth v. Bruno, supra. At least one of the above mentioned prongs of the M'Naughten test must be established in order to be considered legally insane. Conversely, in order for the Commonwealth to sustain their burden of proving appellant was sane, they must prove that appellant did know the nature and quality of his act and did know that it was wrong.

An examination of the record reflects that the Commonwealth introduced expert testimony from Dr. George A. Lapes, a psychiatrist who examined the appellant six months after the crime occurred. After testifying that he had discussed the facts of this case with the appellant, Dr. Lapes expressed the opinion that, based upon the way appellant

[ 284 Pa. Super. Page 177]

    described the events in question, appellant did know the difference between right and wrong and that he did know the nature and quality ...

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