January 19, 1982
COMMONWEALTH OF PENNSYLVANIA
ROBERT ALLEN, APPELLANT
No. 353 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County at No. 418 June Session 1979.
Before Cercone, P.j., Wickersham and Brosky, JJ. Brosky, J. files a concurring and dissenting opinion.
Judgment of sentence affirmed.
BROSKY, J. files a concurring and dissenting opinion.
I concur in the result reached by the majority that Allen was brought to trial within the time constraints of Pennsylvania Rule of Criminal Procedure, Rule 1100, however, I do not share the view of the majority concerning Allen's raising of the insanity defense.*fn1 I would hold that Allen did present the court sufficient evidence to place his sanity in issue.
In Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974) (hereinafter Demmitt), our Supreme Court held that a defendant may place his sanity in issue by presentation of facts which convince the court by less than a preponderance of the evidence that he was not sane at the time the crime was committed. The court also clearly stated that the defendant may demonstrate his absence of sanity through the use of expert or non-expert testimony. Id. at 483, 321 A.2d at 632. See also Commonwealth v Knight, 469 Pa. 57, 364 A.2d 902 (1976); Commonwealth v. Davis, 267 Pa. Super. 370, 406 A.2d 1087 (1979).
Prior to the Demmitt decision, a defendant was required to convince the court by a preponderance of the evidence that he was not sane before the Commonwealth was required to prove beyond a reasonable doubt that the defendant was sane when he committed the crime. In Commonwealth v. Vogel, 441 Pa. 1, 268 A.2d 89 (1970), our Supreme Court adopted the reasoning found in United States v. Currens, 290 F.2d 751 (3rd Cir. 1961), which indicated that a defendant will satisfy the preponderance burden in insanity cases where he presents the court "some evidence" which indicates that he was not sane at the time he committed the crime. Clearly, this was not a heavy burden. Hence, the defendant who seeks to place his sanity in issue today need present the court something less that "some evidence" that he was not sane at the time he committed the crime.
The substance of the evidence which the defendant must present the trial court in order to place his sanity in issue is stated in Demmitt at 483, 321 A.2d at 632 (1974):
[T]he law in Pennsylvania is that in order to establish insanity, a defendant must still meet at least one part of the two-pronged M'Naghten [sic] test. There must be evidence in the case from whatever source that he did not know the nature and the quality of his act or that he did not know that it was wrong. When he offers evidence of that insanity, the Commonwealth can no longer rely upon a presumption of sanity, but instead must offer evidence to show that he was sane.
In Commonwealth v. Thompson, Pa. Super. , , 417 A.2d 1243, 1246-1247 (1979), we said:
Once raised the issue becomes one for the fact finder. The initial question must be whether the issue has been creditably raised or whether it is simply an artifice. Of course, if the fact finder decides on initial examination that the evidentiary source of the insanity issue is wholly contrived, that it is a complete sham, the evidence is rejected and there is no insanity issue for the Commonwealth to meet. This is the precise case here. In this non-jury case the trial judge in his opinion following post-trial motions stated: "the court found the defendants insanity testimony to be a complete sham. The story concocted by Thompson demonstrated his intelligence and his awareness of the situation." This was an issue best decided by the fact finder and our examination of the record leads us to conclude that his finding should not be disturbed. As was stated in Commonwealth v. Norman, 359 Pa. Super. 301, 306, 393 A.2d 837, 840 (1978), "T(o) hold otherwise would be to offer every actor with a modicum of acting ability an opportunity to escape criminal responsibility."
Our standard of review is established. We must determine, upon our reading of the entire record, whether the defendant presented sufficient evidence to place his sanity in issue. Commonwealth v. Harper, 479 Pa. 42, 387 A.2d 824 (1978). This requires that we must decide whether there was something less than "some evidence" which places the defendant's sanity in issue under one leg of the M'Naughten test and which is evidence that indicates that the defendant is not engaging is a sham.
It appears to me the very nature of Allen's act when viewed in light of testimony he gave and most importantly the statements of Detective Guster Richardson presented the trial court sufficient evidence to place Allen's sanity in issue. Detective Rechardson stated:
Q. When Mr. Allen gave that statement to you, did he indicate to you what he felt he did was proper and right?
Q. Do you think in his mind he actually felt that was proper?
Q. And that it was right?
Q. Do you think the statement which Mr. Allen gave was that of a sane man? [objection overruled]
I would hold that this evidence was sufficient to prove that Allen did not appreciate the nature of his acts at the time of the crime by something less than a preponderance of the evidence. Thus, Allen satisfied the standard established in Demmitt, supra, at 483, 321 A.2d at 632. I am convinced also that Allen's claims were not mere concoctions presented to the court amounting to a sham. The issue of Allen's sanity was properly raised in the court below.
*fn1 It is certain that the trial court acted properly. 42 Pa.C.S.A. 5505. Allen received notice of the Commonwealth's intentions to seek a modification and a hearing was held at which Allen presented argument. See Commonwealth v. Horsman, 239 Pa. Super. 534, 361 A.2d 433 (1976), interpreting 12 P.S. § 1032 which was replaced by 42 Pa.C.S.A. § 5505.