No. 2233 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1113, 1115 February Term, 1980
Barry H. Denker, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Brosky and Beck, JJ.
[ 319 Pa. Super. Page 499]
This appeal is from judgment of sentence imposed subsequent to conviction for Murder in the First Degree and Possessing an Instrument of a Crime. On appeal appellant raises three issues. First, he argues that his demurrer should have been granted. Second, he argues that the M'Naghten Rule for determining legal insanity should be substituted with the Model Penal Code test. Third, he contends that the Commonwealth failed to prove that he was legally sane when the crimes were committed. We find these arguments to be either waived or without merit and, accordingly, affirm.
The failure of a court below to grant a demurrer is not properly the subject of appeal. "Since however, the defendant did not rest following the adverse ruling, but elected to put in a case in defense, the correctness of the ruling on the demurrer is no longer an available issue." Commonwealth v. Ilgenfritz, 466 Pa. 345 at 347, 353 A.2d 387 at 388 (1976). Once the trial has proceeded to the presentation of defense evidence, the proper challenge on appeal is to the sufficiency of the evidence. Further, this issue was not raised in the post-verdict motions. As such it is waived. Commonwealth v. Moore, 462 Pa. 231, 340 A.2d 447 (1975).
The second issue, regarding the propriety of the M'Naghten Rule, is also waived. Not only was it absent from the post-verdict motions, but it was also not argued to the court below. Commonwealth v. Williams, 476 Pa. 557 at 570, 383 A.2d 503 at 509 (1978). This issue is thus doubly waived.
The third and final issue is properly before us. Appellant included in his post-verdict motions and also argued orally before the post-verdict court the issue that the Commonwealth failed to establish beyond a reasonable doubt appellant's sanity at the time of the commission of the crime.
[ 319 Pa. Super. Page 500]
When a defendant raises the issue of his sanity, the Commonwealth must prove beyond a reasonable doubt that he knew the nature and quality of his act and that he knew it was wrong.
Commonwealth v. Metzler, 300 Pa. Super. 19 at 21, 445 A.2d 1277 at 1278 (1982).
This issue is to be reviewed by us in the same way as other sufficiency of ...