No. 2554 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Phila. County at No. 998/1009 Aug. Term 1975.
Franchot Golub, Philadelphia, for appellant.
Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Hoffman, JJ.
[ 290 Pa. Super. Page 106]
This is an appeal from a judgment of sentence. Appellant's principal argument is that his trial counsel was ineffective in failing to present an insanity defense. Finding no merit in this argument, or in appellant's other arguments, we affirm.
On June 20, 1975, appellant and two other men committed a series of violent acts against the occupants of an apartment in the building in which appellant lived. In its opinion the lower court described these events as follows:
On the pretense that Rubenna Coleman had burglarized his apartment, defendant, with his two confederates, invaded her apartment and during the course of several hours, robbed, raped, sodomized and terrorized Ms. Coleman and her luckless guests. These crimes were perpetrated with unusual depravity and brutality: the victims were alternately tied, beaten and terrorized; the two women were sodomized and forced to commit cunnilingus on one another and fellatio on Mr. Chaney. Diane Ruff
[ 290 Pa. Super. Page 107]
was compelled to defecate and Ms. Coleman to eat it and drink from a pail containing regurgitation and feces. Ms. Ruff was scalded with boiling water. Only the dawn brought surcease from the outrage. The police found both women exhausted and severely injured. Ms. Ruff required plastic surgery on her face.
On May 17, 1976, when the case was first listed for trial, appellant failed to appear. A bench warrant was issued but he was not apprehended until September 13, 1976. Slip op. at 10. On April 25, 1977, the trial commenced, before a jury. On May 3, appellant was found guilty on two counts of aggravated assault, two counts of robbery, three counts of involuntary deviate sexual intercourse, and one count each of terroristic threats, criminal conspiracy, unlawful restraint, and possession of an instrument of crime.
On May 9, 1977, appellant's trial counsel filed motions in arrest of judgment and for a new trial, alleging only that the verdict was contrary to the evidence, contrary to the weight of the evidence, and contrary to the law. In addition, his motions referred to "[s]uch additional reasons, as counsel may file after the Notes of Testimony have been transcribed." Appellant's counsel subsequently withdrew his appearance and appellant obtained new counsel, who apparently filed additional post-verdict motions, including allegations of ineffectiveness on the part of trial counsel.*fn2
[ 290 Pa. Super. Page 108]
On August 14, 1978, and again on February 1, 1979, the lower court held hearings on appellant's allegations of ineffectiveness of counsel. On December 5, 1979, the lower court denied the post-verdict motions and sentenced appellant. Appellant appeals from this judgment of sentence.
Appellant's principal argument is that his trial counsel was ineffective in failing to present an insanity defense.*fn3
[ 290 Pa. Super. Page 109]
Appellant was originally represented by James Crummett, an attorney from the Defender Association of Philadelphia. Sometime in late November 1976, after appellant's flight and apprehension, the lower court received a letter from appellant in which appellant stated that he wished to enter a plea of not guilty by reason of temporary insanity. Slip op. at 10. Mr. Crummett then arranged to have appellant examined by Perry A. Berman, a psychiatrist associated with the Defender Association. On January 7, 1977, Dr. Berman examined appellant for a little over an hour and reviewed the records in the case, including transcripts of testimony in the cases involving appellant's co-defendants. N.T. at 420. On January 12 Dr. Berman reported his findings to Mr. Crummett in a memorandum in which he said in part:
The nature of the crime itself indicates a need for psychiatric evaluation.
He and his friend went to that apartment, and when they entered they started threatening the two women, and one of the men that were there. Someone threw lye on his friend and that caused both of these men to go berserk. At that point the co-defendant and this defendant started a series of what obviously seemed like crazy acts. I will not go into reporting them here, but from the description I have been given the entire episode sounds like a loss of touch with reality and a relatively psychotic state.
[ 290 Pa. Super. Page 110]
I am not presenting any further findings because I wish to discuss the case directly before further interviewing this man.
RECOMMENDATIONS : The usual insanity defense does not apply to this case. There does seem to have been a momentary period of insanity, and I am certain that the District Attorney would simply label that anger. I would label it anger, with loss of contact in reality. However, there is no evidence of continuing mental illness in this defendant.
In a memorandum dated January 24, 1977, Mr. Crummett requested from Dr. Berman "a total background work-up and full psychiatric profile with an aim towards preventing an insanity (temporary or otherwise) ...