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decided: January 30, 1981.


No. 476 January Term, 1978, Appeal from Judgments of Sentence entered November 9, 1978 from the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, at Nos. 915 to 921, October Term, 1977


James J. Binns, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Franklin Hoel, Asst. Dist. Atty., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a concurring opinion.

Author: Nix

[ 493 Pa. Page 38]


As a result of an incident which occurred in Philadelphia on October 3, 1977, appellant, Bernard Murphy, was tried and convicted for the shooting deaths of two victims and the aggravated assault of a third individual. He was sentenced on the murder convictions to concurrent terms of life imprisonment and a concurrent term of not less than five nor more than ten years for the aggravated assault bill of indictment. This is a direct appeal from these judgments of sentence.*fn1

These shootings occurred in and about the premises of a State Liquor Store shortly after noontime. Appellant entered the store and stood in one of two lines waiting for service. When two other persons entered the store, one joined the line behind appellant and the other went to the rear of the second line. Appellant turned to the man who had taken the position immediately behind him and asked him where he was from and "what's your problem." When the person responded that he did not have a problem, appellant shot him and killed him. This person was identified as Basil Moore. Appellant then fired at the person standing at the end of the second line, striking him in the head. This victim, Eric Younger, recovered from his wounds and testified at trial against appellant. Appellant, after shooting Younger, left the store and on the sidewalk shot a third man who had been with Moore and Younger.

At trial appellant raised the defenses of insanity and justification. In support of the justification defense, appellant

[ 493 Pa. Page 39]

    contended that he had shot the three victims in defense of the life of his companion, Robinson. This version was corroborated by Robinson and several other defense witnesses who testified to certain threats made on the life of Robinson by a youth gang, of which the defense alleged the three victims were members.

The first assignment of error is that the trial court abused its discretion in denying a request for a bifurcated trial pursuant to the Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143, § 404, 50 P.S. § 7404 (Supp. 1980-81). Section 404(c) provides:

Bifurcation of Issues of Trial. -- Upon trial, the court, in the interest of justice, may direct that the issue of criminal responsibility be heard and determined separately from the other issues in the case and, in a trial by jury, that the issue of criminal responsibility be submitted to a separate jury. Upon a request for bifurcation, the court shall consider the substantiality of the defense of lack of responsibility and its effect upon other defenses, and the probability of a fair trial.

By its terms the statute directs that the determination as to whether such a request should be granted should turn upon "the substantiality" of the insanity defense and its "effect upon other defenses." We would readily agree there would be serious question as to whether the fair trial standard of section 404(c) could be satisfied if one with a substantial insanity claim were forced to assert it before the same fact tribunal that was being called upon to assess an alternative claim of defense of another. The insanity defense is premised upon the contention that the actor did not know the nature and quality of the act or could not perceive the distinction between right and wrong. Commonwealth v. Hicks, 483 Pa. 305, 396 A.2d 1183 (1979); Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976); Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974). The incompatibility with a defense of justification, such as defense of a

[ 493 Pa. Page 40]

    third party, is evident.*fn2 Thus the validity of this complaint must depend upon "the substantiality" of the insanity defense raised here.

The only evidence on the record at the time appellant requested a bifurcated trial related to his competency to stand trial. The test for competency to stand trial not only relates to the accused's mental state at the time proposed for trial and is therefore not necessarily relevant to his state of mind at the time of the occurrence, Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143, § 402(a), 50 P.S. § 7402(a); Commonwealth v. Harper, 479 Pa. 42, 387 A.2d 824 (1978); Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973); Commonwealth ex rel. Hilberry v. Maroney, 424 Pa. 493, 227 A.2d 159 (1967); Commonwealth v. Dimitris, 247 Pa. Super. 486, 372 A.2d 930 (1977), it also uses a different standard than the one employed to determine criminal responsibility for the act. Commonwealth v. Harper, supra; Commonwealth v. Kennedy, supra; Commonwealth ex rel. Hilberry v. Maroney, supra.*fn3 Appellant, nevertheless, still argues that if the request had been granted a substantial issue as to his sanity at the time of the defense could have been raised. He did not at the time of the application, nor even in his brief in this appeal, suggest with specificity what additional evidence may have been available to support the defense. Thus based upon the information provided to the court, we cannot say the denial of the request constituted an abuse of discretion.

It is next charged that the trial court erred in permitting evidence of alleged criminal activity of appellant one and one-half hours before the charges for which he was being tried. Henry Pompey, a witness for the Commonwealth,

[ 493 Pa. Page 41]

    testified that one and one-half hours before the shootings he had met appellant not far from the liquor store. Appellant took a gun from under his coat and said, "let's have a shootout." The witness testified that he answered he did not wish to have a shootout and appellant walked away mumbling. Generally, evidence of a defendant's prior criminal activity is not admissible. Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979); Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978); Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). However, evidence concerning a defendant's conduct at a time and place very close to the commission of the crimes for which he is charged is admissible if relevant to show a defendant's mental state when he committed the crimes with which he is charged. Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972); Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970); Commonwealth v. Wable, supra.

The defense of others is dependent upon the mental state of the actor. Commonwealth v. Jackson, 467 Pa. 183, 355 A.2d 572 (1976); Commonwealth v. Brentley, 267 Pa. Super. 20, 405 A.2d 1282 (1979). We are satisfied that this event was sufficiently proximate in time to be germane in determining appellant's state of mind at the time of the shootings. The jury could properly consider whether the aggressive and provocative behavior exhibited in the earlier event carried over to the time of the incident in question.*fn4

The third complaint is that the defense was improperly restricted and too much latitude was given to the prosecution

[ 493 Pa. Page 42]

    in cross-examination. Appellant also complains that he was denied the opportunity to present competent and exculpatory evidence. The latter complaint related to the evidence sought to be elicited from Detective Dougherty. Our review of the trial record satisfies us that the trial court properly limited the scope of cross-examination of both defense counsel and the prosecutor and also properly ...

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