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filed: August 12, 1983.


No. 2748 Philadelphia 1981, Appeal from the Judgment of Sentence of September 24, 1981 in the Court of Common Pleas of Philadelphia County, Criminal No. 1254, 1256, 1258, 1260, 1262, 1264, 1266, 1268, 1270 May Term, 1980.


Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Johnson and Popovich, JJ. Popovich, J., files a concurring and dissenting opinion.

Author: Johnson

[ 318 Pa. Super. Page 171]

This is an appeal from judgment of sentence dated September 24, 1981. Appellant, Charles Frisbie, raises two issues for our consideration. The first issue is whether the trial judge erred in ruling that the evidence presented at appellant's trial was not sufficient to put appellant's sanity in issue. The second issue is whether the trial judge erred in sentencing appellant to one year probation on each of nine counts of recklessly endangering another person when these charges arose out of an automobile accident resulting from one unlawful act. Of these two issues, we find only the second to be meritorious. We therefore vacate the sentences imposed below on all counts of recklessly endangering another person and remand for resentencing.

Appellant was arrested on May 2, 1980. The circumstances of his arrest were as follows. At 5:00 p.m., two police officers noticed appellant's vehicle proceeding west on Tasker Street in Philadelphia in an erratic manner. It seemed that appellant's vehicle was continually stopping and moving forward in a jerking motion. Upon concluding that something was wrong, one of the officers, Elden Olsten, approached appellant's vehicle while signaling appellant to pull over. Appellant locked his doors and rolled up his windows. He then reclined in his seat, putting his hands behind his head, and smiled. The appellant drove off. Officer Olsten returned to the police van. Upon his return

[ 318 Pa. Super. Page 172]

    he indicated to his partner that appellant seemed "spaced out" and that they were going to have trouble with him.

Because of traffic, the officers were compelled to follow directly behind appellant until they reached Broad and Tasker Streets. At this point Officer Olsten approached appellant's vehicle again, but before he could break the window to gain entry into the interior of the vehicle, appellant propelled his vehicle forward, through a crowd of people in the street waiting for a trolley. Several persons suffered injury.

Appellant then entered the Schuylkill Expressway pursued by a second police van. A high speed chase ensued. On three occasions during the chase, the police officers narrowly avoided colliding with appellant's vehicle when it veered in front of them. Finally, appellant lost control of his vehicle and it overturned on the expressway. Whereupon, appellant was apprehended.

After several months of delay because appellant was incompetent to stand trial, appellant was tried before the Honorable Alfred J. DiBona, Jr., sitting without a jury, on nine counts of recklessly endangering another person*fn1 and one count of leaving the scene of an accident involving personal injury.*fn2 His sole defense at trial was that he was legally insane in accordance with the M'Naghten test,*fn3 when he committed the offenses charged. After two days of trial, appellant was convicted on all counts. Post-verdict motions were filed and later denied. Appellant was then sentenced to one year probation on each of the criminal counts of which he was convicted. This appeal followed.

[ 318 Pa. Super. Page 173]


Appellant argues that sufficient evidence was presented at his trial to raise the issue of insanity. He argues further that the Commonwealth had the burden of proving his sanity beyond a reasonable doubt,*fn4 and that it failed to discharge that burden. In light of Commonwealth v. Thompson, 274 Pa. Super. 44, 417 A.2d 1243 (1979), appellant's arguments must be rejected.

The crux of the problem in the instant case is that the defense presented testimony of appellant's insanity and the Commonwealth made no effort to present evidence of appellant's sanity, other than, perhaps, testimony concerning the circumstances of the incident and what it could elicit from cross-examination. Also, the trial judge did not find that appellant's sanity had been proven beyond a reasonable doubt. Commonwealth v. Thompson, supra, analyzes similar circumstances.

In Thompson, the defendant testified at trial that he had no knowledge of the crime of which he was charged, and that if anyone participated in the crime, it was his "consciousness," a separate person that died in Bucks County. Notwithstanding his testimony, the trial judge convicted defendant of burglary, robbery, criminal conspiracy, and aggravated assault. On appeal, the defendant argued that his testimony raised the issue of insanity, and accordingly the Commonwealth could no longer rely on any presumption of sanity, rather it had to prove his sanity beyond a reasonable doubt. In an opinion by JUDGE CAVANAUGH, this court said:

[c]ertainly it would work an unreasonable mischief if at the conclusion of every case the court on request had to send an insanity issue to the jury on the insistence of the defendant that a view of all the evidence raises the issue and requires a determination of whether the Commonwealth

[ 318 Pa. Super. Page 174]

    has proved sanity. It appears, then, that there must be a threshold determination by the trial judge to determine if . . . the 'evidence in the case from whatever source' is sufficient to raise the issue of insanity.

Commonwealth v. Thompson, supra, 274 Pa. Super. at 49, 417 A.2d at 1246. Upon examining the defendant's testimony, the court in Thompson found the testimony to be sufficiently relevant to a determination of the defendant's sanity under the M'Naghten test that the issue of insanity had to be considered. JUDGE CAVANAUGH went on to state that:

[o]nce raised the issue becomes one for the factfinder. The initial question must be whether the issue has been creditably raised or whether it is simply an artifice. Of course, if the factfinder 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 . . . . In this non-jury case the trial judge in his opinion following post-trial motions stated: "the court found the defendants [sic] insanity testimony to be a complete sham. The story concocted by Thompson demonstrated his intelligence and his awareness of the situation." This issue was an issue best decided by the factfinder and our examination of the record leads us to conclude that his finding should not be disturbed.

Id., 274 Pa. Superior Ct. at 50, 417 A.2d at 1246-47. JUDGE CAVANAUGH concluded that there had been no error committed below.

As we read Thompson, the trial judge will first determine that the evidence of insanity is relevant to a determination of the defendant's sanity under the M'Naghten test. Then, even if the evidence is relevant and the Commonwealth has not introduced independent proof that a defendant was sane, the defendant is not necessarily entitled to be acquitted by reason of insanity. The factfinder upon examining the evidence of insanity and its source must determine if the issue of insanity is creditably raised. It

[ 318 Pa. Super. Page 175]

    may reject the evidence of insanity, the effect of which is to relieve the Commonwealth from having to adduce proof beyond a reasonable doubt that the defendant was sane. If that determination is amply ...

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