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COMMONWEALTH PENNSYLVANIA v. DAVID LLOYD KUHN (03/23/84)

filed: March 23, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID LLOYD KUHN, JR., APPELLANT



No. 672 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Blair County, Criminal Division, at C.A. Nos. 45 and 65 OF 1978.

COUNSEL

John Woodcock, Jr., Public Defender, Hollidaysburg, for appellant.

Gary A. Caldwell, Assistant District Attorney, Altoona, for Commonwealth, appellee.

Spaeth, Brosky and Montemuro, JJ. Montemuro, J., files a concurring opinion. Spaeth, J., files a dissenting opinion.

Author: Brosky

[ 327 Pa. Super. Page 75]

This appeal is from judgment of sentence imposed subsequent to conviction for burglary, theft and causing or risking a catastrophe. Appellant raises seven issues: (1) A Rule 1100 violation. (2) Failure to suppress a confession. (3) Failure to sustain a demurrer. (4) Not permitting a psychologist to testify regarding appellant's involuntary intoxication due to chronic alcoholism. (5) The amount of restitution exceeding appellant's ability to pay. (6) The verdict was against the law. (7) The verdict was against the weight of the evidence. We find that issues (3), (5), (6) and (7) are waived; and we find against appellant on issues (1), (2) and (4). Accordingly, judgment of sentence is affirmed.

Rule 1100

Appellant argues that he is entitled to discharge as a result of a violation of Pa.R.Crim.P. 1100.*fn1

[ 327 Pa. Super. Page 76]

Appellant was charged on January 22, 1978. Prior to the Rule 1100 run date, the prosecution filed a petition to extend. This was granted until November 3. Trial was commenced before that date.

At the extension hearing, it was brought out that the trial could not be held due to a number of factors creating judicial delay: a backlog of cases, the resignation of the President Judge and construction in the courthouse. Judicial delay constitutes a valid reason justifying a Rule 1100 extension. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976).

Accordingly, we find that appellant does not prevail on this issue.

Suppression

Appellant contends that the court below erred in failing to suppress the statement he gave to a State Police trooper the morning after the commission of the crimes. He contends that this statement was given involuntarily since he was intoxicated at the time it was made.

We note at the outset that this issue was presented to the court below in a tardy fashion, at the day of trial. The trial court noted this lack of timeliness but nonetheless chose to address the issue. As a result, the issue is preserved for appellate review.

In Commonwealth v. Pinno, 433 Pa. 1, 248 A.2d 26 (1968), Justice Roberts considered the effect of a tardily filed suppression motion.

We believe that a proper reading of Rule 2001 compels the conclusion that the question of waiver under 2001(b) is a matter solely for the court. 2001(b) provides four alternative excuses for a failure to meet the "five days before trial" requirement. The drafters' notes explicitly state that the last of these, if "the interests of justice require it," gives the court discretionary power to entertain

[ 327 Pa. Super. Page 77]

    the application after the expiration of the time period . . . . When the trial judge decided the merits of appellant's suppression claim, he in effect exercised his discretionary power to excuse appellant's noncompliance with the five day rule.

Commonwealth v. Pinno, supra, 433 Pa. at 5-6, 248 A.2d at 29.

The rule dealt with in Pinno is not the one presently before us, but it was one of the rules consolidated to form the present rule -- Pa.R.Crim.P. 323. The latter also includes the phrase if "the interests of justice" which was crucial to the rationale in Pinno. Pinno is, therefore, applicable to the case before us; and thus the trial court had within its discretion the decision to treat the tardy suppression motion. Given this discretion, "it no longer makes any sense to consider waiver." Id.

As we have said, appellant alleges that his intoxication at the time he made the statement rendered it involuntary and consequently inadmissible. The effect of such intoxication, if established, has been set out in a number of Pennsylvania Supreme Court cases.

Recent imbibing or the existence of a hangover does not make his confession inadmissible, but only goes to the weight to be accorded to it.

Commonwealth v. Smith, 447 Pa. 457 at 460, 291 A.2d 103 at 104 (1972).

Again, intoxication is a factor to be considered, but it is not sufficient, in and of itself to render the confession involuntary.

Commonwealth v. Jones, 457 Pa. 423 at 432, 322 A.2d 119 at 125 (1974).

In order for the intoxication to render the confession involuntary, it must have had a certain precise impact on the individual.

The test is whether there is sufficient mental capacity for the defendant to know what he was saying and to have voluntarily intended to say it.

[ 327 Pa. Super. Page 78]

    basis for us to hold as a matter of law that the court's finding of voluntariness of the confession was not adequately supported and well within the court's discretion.

Commonwealth v. Smith, supra, 447 Pa. at 461, 291 A.2d at 104.

The denial of the motion to suppress is not, therefore, reversible.

Demurrer

Appellant claims that the court below erred in not granting his demurrer to the charge of causing or risking a catastrophe.*fn2 "Since however, the defendant did not rest following this 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).

In Ilgenfritz, the Supreme Court of this Commonwealth chose*fn3 to "treat the question as if properly framed, namely, whether the trial court erred in refusing defendant's motion in arrest of judgment. In doing so, of course, we consider all of the evidence at trial, not only that contained in the Commonwealth's case in chief." Id. Because appellant has also raised an issue regarding the verdict being against the law, we can address it, the properly framed issue.*fn4 The choice of addressing the improperly pleaded issue is consequently not before us.

Involuntary Intoxication

Appellant argues that the trial court erred in not allowing a psychologist, Dennis Shapson, to testify. He was to have testified to appellant's involuntary intoxication at the time of the commission of the crimes. The alleged involuntary

[ 327 Pa. Super. Page 80]

    intoxication did not come about in the traditional ways the law has recognized such a state: being forced to consume alcohol or drugs, or consuming them without knowledge of their intoxicating contents.

A letter sent to the Public Defender by Shapson, and another staff member of the Altoona Hospital, psychiatrist Pauline Goldschmidt, succinctly states the theory of involuntary intoxication ...


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