Appeal from the Judgment of Sentence December 15, 1986 in the Court of Common Pleas of Delaware County, Criminal, No. 127-84, 541-84.
Nicholas J. Caniglia, Wayne, for appellant.
Sandra L. Elias, Deputy District Attorney, Media, for Com., appellee.
Cirillo, President Judge, and Beck and Tamilia, JJ. Beck, J., files a concurring opinion.
[ 374 Pa. Super. Page 554]
This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Delaware County following James J. Trill's conviction for robbery, simple assault, terroristic threats, and theft by receiving stolen property. We affirm.
The charges against Trill arose out of an incident that occurred at the Riddle Ale House, Middletown Township, Delaware County, on the evening of January 8, 1984. At approximately 7:30 p.m. Trill entered the restaurant and walked behind the bar counter. He then tapped the bartender, John Naughton, on the shoulder and requested a "take out" order of beer. Mr. Naughton informed Trill that Riddle Ale House did not provide take out service for its customers, and he further explained that restaurant policy prohibited patrons from being behind the bar counter. Consequently, Mr. Naughton asked Trill to return to the area in
[ 374 Pa. Super. Page 555]
front of the bar. Trill ignored this request and opened his overcoat to display what appeared to be a rifle. He then stated: "[T]his is a sawed-off shotgun, open that [cash register] drawer and give me the money or I'll blow your f___ brains out." Mr. Naughton indicated that he could not open the cash register drawer without the manager's assistance. Thwarted in his attempt to obtain the cash from Naughton, Trill began to search the dining room area of the restaurant, hoping to locate the manager. While Trill was gone, Naughton found his manager in the back room of the building, and told him to summon the police.
Trill exited the building without obtaining any cash and was immediately observed by State Police Trooper Joseph Karlin, who had arrived at the scene in less than thirty seconds after receiving the call. Trill was standing in the restaurant parking lot, beside a station wagon. Upon noticing the arrival of the police, Mr. Naughton vaulted out into the parking lot and struck Trill, exclaiming "That's the guy!" The police officers apprehended and arrested Trill and confiscated a toy rifle that he had allegedly represented as authentic during the attempted robbery. The rifle was clearly visible to the officers through the open door of the automobile where Trill was standing. A search of Trill incident to his arrest disclosed the presence of a gold watch, a man's wedding band, a gold cigarette lighter with the inscription "Don," and medication with the name Donald Pritchett on the label. Police later discovered that these items had been stolen from Donald Pritchett's car earlier in the day. Trill was then taken into custody and detained pending trial.
A jury trial was held in the Court of Common Pleas of Delaware County before the Honorable Anthony R. Semeraro. Although Trill interposed a defense of insanity, the jury found him guilty but mentally ill on the charges of robbery, 18 Pa.C.S. § 3701, simple assault, id. § 2701, and terroristic threats, id. § 2706. He was found guilty of the charge of theft by receiving stolen property, id. § 3925. The trial court denied post-trial motions. This appeal followed.
[ 374 Pa. Super. Page 556]
Trill advances the following seven issues for our review: (1) whether the charges against him should have been dismissed by the trial court pursuant to Rule 1100 of the Pennsylvania Rules of Criminal Procedure; (2) whether Trill's conviction of theft by receiving stolen property must be vacated since it is inconsistent with the verdict of guilty but mentally ill; (3) whether the evidence was sufficient to sustain the finding that Trill was not insane; (4) whether the trial court denied Trill a fair and impartial jury trial by failing to grant his requested questions for voir dire; (5) whether the trial court improperly permitted the admission of hearsay testimony regarding the physician's report of his sanity; (6) whether the trial court improperly instructed the jury on the charge of legal insanity; and (7) whether Pennsylvania's guilty but mentally ill statutory scheme, 18 Pa.C.S. § 314, violates Trill's constitutionally protected equal protection and due process rights.
Trill initially contends that the trial court should have dismissed the charges lodged against him because of the Commonwealth's alleged failure to comply with Rule 1100 of Pennsylvania's Rules of Criminal Procedure. Rule 1100 provides, in pertinent part:
(a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
(c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
(2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.
Pa.R.Crim.P. 1100(a)(2), (c)(1), (2).
Rule 1100 "serves two equally important functions: (1) the protection of the accused's speedy trial rights, and (2)
[ 374 Pa. Super. Page 557]
the protection of society." Commonwealth v. Brocklehurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Simms, 509 Pa. 11, 500 A.2d 801 (1985). Bearing this in mind, our supreme court has offered the following standard for reviewing Rule 1100 claims:
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society's right to punish and deter crime . . . . [C]courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.
Commonwealth v. Genovese, 493 Pa. 65, 72, 425 A.2d 367, 370-71 (1981). Further, "[t]he administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth." 493 Pa. at 70, 425 A.2d at 370. It is with these precepts in mind that we consider Trill's Rule 1100 claim.
The first criminal complaint against Trill, Information 127-84, was filed on January 9, 1984; the second complaint, Information 541-84, was filed on January 19, 1984. Therefore, pursuant to Rule 1100, the trials should have commenced on or before July 10 and July 19, 1984, respectively. Any delay beyond the 180-day speedy trial period must be either excluded from the computation of the period under Rule 1100(d), or justified by an order granting an extension pursuant to Rule 1100(c). Commonwealth v. Snyder, 280 Pa. Super. 127, 421 A.2d 438 (1980).
Rule 1100 excludes from the computation of the 180-day time frame any period of delay that results from "the unavailability of the defendant or his attorney." Pa.R.Crim.P. 1100(d)(3)(i). In the case at bar, the Commonwealth
[ 374 Pa. Super. Page 558]
is entitled to several exclusions because of Trill's unavailability for trial. Trill requested a continuance of the preliminary hearing to allow the appointment of conflict counsel from January 17 to February 7, 1984, a period of time encompassing twenty-one days. This excludable time was not contingent upon Trill's express waiver. See Pa.R.Crim.P. 1100(d)(3)(ii). Consequently, we exclude this twenty-one days in our Rule 1100 computation. Additionally, Trill was granted a continuance for psychiatric evaluation from April 30 to May 14, 1984. The Commonwealth is also entitled to the exclusion of these fifteen days, bringing the total amount of excludable days as a result of Trill's unavailability at this early stage to thirty-six days.
Under Rule 1100, the Commonwealth is entitled to apply to the trial court for an order extending the time for commencement of the trial. Pa.R.Crim.P. 1100(c)(1). On June 25, 1984, the Commonwealth properly filed a Rule 1100 extension petition which resulted in the grant of an extension on both informations for ninety days from the date that Trill was declared competent to stand trial. The order stated: "the time for commencement of trial is extended for a period of ninety (90) days after the date when Defendant is declared competent to stand trial by the appropriate medical authorities at Haverford State Hospital." In light of the extension, our inquiry turns to a determination of whether Judge Surrick's extension order was properly followed.
Trill claims that he was declared competent to stand trial by the authorities at Haverford State Hospital on September 25, 1984; however we note that on that same day Trill "walked off" the grounds at haverford State Hospital and was arrested on new robbery, stolen car, and resisting arrest charges. After his arrest and recapture, the trial court reassessed Trill's competence to stand trial. The result of the inquiry was an order, dated November 23, 1984, adjudicating Trill incompetent to stand trial. Thus, even if we were to consider September 25, 1984 as the threshold date for the commencement of the ninety-day
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period, the trial court's November 23, 1984 order declaring Trill incompetent to stand trial vitiated the effect of Judge Surrick's order. Two months later, on January 28, 1985, the court entered another order declaring that Trill remained incompetent to stand trial. As a result, the Commonwealth petitioned for another Rule 1100 extension, which the trial court granted on February 1, 1985. Time for trial was extended to "no later than 90 days from the date upon which the defendant is found by the court to be competent to stand trial."
It was not until August 15, 1985 that the trial court declared Trill competent to stand trial. Since the delay from November 23, 1984 to August 15, 1985 was attributable to Trill by reason of his incompetency, this period is excludable from our Rule 1100 computations. Commonwealth v. Armstead, 359 Pa. Super. 88, 518 A.2d 579 (1986). After the August 15, 1985 finding of competency, the Commonwealth had until November 13, 1985 to bring Trill to trial. For Rule 1100 purposes, the trial commenced on November 12, 1985, when Judge Semeraro heard motions which had been reserved for the time of trial. See Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981); Commonwealth v. Bond, 350 Pa. Super. 341, 504 A.2d 869 (1986). Having determined that Trill's trial commenced before November 13, 1985, we conclude that the Commonwealth properly brought him to trial within the time limitations imposed by Rule 1100. Accordingly, we dismiss his Rule 1100 claim as meritless.
Trill next contends that the jury's guilty verdict on the charge of theft by receiving stolen property must be vacated because of its inconsistency with the verdict of guilty but mentally ill on the remaining charges. Since the offenses in both informations occurred on the same day, Trill proclaims that it logically follows that he should have been found guilty but mentally ill on the theft charge also. We disagree.
[ 374 Pa. Super. Page 560]
It is now axiomatic that consistency in criminal verdicts is not required. In addressing an appeal involving allegedly inconsistent verdicts, our supreme court has stated:
[E]ven if it were assumed that the two verdicts were logically inconsistent, such inconsistency alone could not be grounds for a new trial or for reversal. "It has long been the rule in Pennsylvania and in the federal courts that consistency in a verdict in a criminal case in not necessary."
Commonwealth v. Gravely, 486 Pa. 194, 205, 404 A.2d 1296, 1301 (1979) (plurality opinion) (citations omitted); see also Commonwealth v. Maute, 336 Pa. Super. 394, 485 A.2d 1138 (1984). Inconsistent verdicts are proper so long as the evidence is sufficient to support the convictions that the jury has returned. Commonwealth v. Graves, 310 Pa. Super. 184, 456 A.2d 561 (1983).
The Commonwealth's evidence surrounding the theft by receiving stolen property charge was completely dissimilar from the evidence involved in the charges stemming from the incident at the Riddle Ale House. The theft by receiving stolen property charge was based primarily upon circumstantial evidence. When Trill was arrested, he possessed several items that belonged to Donald Pritchett. Pritchett had these items stolen from him earlier in the day, and had never known Trill or given him permission to seize the items. From the evidence adduced at trial, the finders of fact were unwilling to conclude that these facts established beyond a reasonable doubt that Trill was mentally ill at the time of the commission of the theft. The jurors were, however, willing to conclude that the evidence established beyond a reasonable doubt that Trill had committed the crime of theft by receiving stolen property. Consequently, the jury rendered a guilty verdict. We will not disturb this finding. It is well settled that a jury is free to believe all, some, or none of the evidence proffered at trial. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). Accordingly, we reject Trill's assertion that the
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theft by receiving stolen property conviction must be vacated as being inconsistent with the finding of guilty but mentally ill.
Trill next asserts that the evidence was insufficient as a matter of law to sustain the finding that he was not insane at the time of the commission of his charged crimes. He maintains that the expert testimony introduced by both the prosecution and the defense strongly supports an insanity finding. Consequently, he alleges that such testimony should have been sufficient to convince a rational trier of fact that he was in fact insane.
The test for reviewing a sufficiency of the evidence claim on appeal from a conviction is:
whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt . . . . The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence . . . . Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered . . . . Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) (citation omitted).
Trill asks us to examine the testimony of Perry Berman, M.D., who testified on behalf of Trill, and compare it with that of Kenneth A. Kool, M.D., who testified for the prosecution. He claims that such an examination will yield an indisputable finding of insanity. We have examined all of the evidence involving Trill's mental state in the light most favorable to the Commonwealth. Drawing all reasonable inferences from that evidence, we have concluded that it was sufficient as a matter of law to sustain the finding of sanity. While it is true that the psychiatric testimony
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concerning Trill's emotional status was conflicting, it was nonetheless within the jury's province to determine which account was more credible. In similar cases, we have stated:
[W]hile psychiatric testimony is of probative value, it is within the province of the jury to determine the credibility and weight of such evidence . . . . Indeed, evidence on a defendant's mental condition can just as credibly come from the testimony of lay witnesses concerning the defendant's actions, conversations and statements at the time of the [crime] from which the jury could find that he knew what he was doing when he [committed the crime] and knew it was wrong.
Commonwealth v. Ruth, 309 Pa. Super. 458, 462, 455 A.2d 700, 702 (1983). In the instant case, several lay persons testified in conjunction with the psychiatric testimony. Mr. Naughton, Mr. Duke, State Police Troopers Kalin and Brown, and defense witness Mr. Sebold all testified in regard to Trill's apparent mental orientation. From that evidence it was reasonable for the fact finder to conclude beyond a reasonable doubt that Trill knew the nature and quality of his actions, or that he knew what he was doing was wrong. Having found that the evidence was sufficient to sustain the finding that Trill was legally sane at the time of the commission of the acts in the Riddle Ale House, we dismiss his allegation of error as meritless.
Trill's next claim of alleged trial error involves the propriety of Judge Semeraro's denial of his requested questions for voir dire. Trill avers that he was effectively denied a fair and impartial trial by not having been allowed to question prospective jurors about their personal feelings and inclinations regarding various aspects of the insanity defense.
In Commonwealth v. Merrick, 338 Pa. Super. 495, 488 A.2d 1 (1985), we reviewed the standard that our appellate courts utilize when addressing voir dire issues:
We start our analysis with the general principle that the purpose of the voir dire system is to ensure the impanelling
[ 374 Pa. Super. Page 563]
of a fair, competent, impartial, and unprejudiced jury. To this end, the scope of a voir dire examination is within the sound discretion of the trial court; absent palpable error, we will not disturb a court's decision. Questions on voir dire should be tailored so as to "disclose lack of qualification and whether the juror has formed a fixed opinion as to the accused's guilt or innocence." However, questions which are "designed to disclose what a juror's present impression or opinion may be or what his attitude or decision will likely be under certain facts which may be developed in the trial of the case" should not be permitted.
338 Pa. Super. at 500-01, 488 A.2d at 3 (citations omitted). It is now settled law in Pennsylvania that a trial court's refusal to permit the accused to question prospective jurors on voir dire about the juror's views of the insanity defense or their potential prejudice against the defense will not constitute palpable error warranting a reversal. Commonwealth v. Biebighauser, 450 Pa. 336, 300 A.2d 70 (1973); Commonwealth v. Hathaway, 347 Pa. Super. 134, 500 A.2d 443 (1985). Applying this well established case law, we find that Judge Semeraro committed no palpable error in refusing to allow Trill to question the Delaware County jury panel regarding their opinions of the insanity defense or possible prejudice against its use. Such questions would have gone beyond the permissible scope and purposes of voir dire. Further, aside from the above-cited authorities which conclusively refute Trill's claim of error, we note that the trial court did make the following query:
Ladies and gentlemen, is there any member of this panel who has such a fixed opinion about the defense of legal insanity at the time an offense is committed that he or she, if selected, could not hear all the evidence with an open mind and deliberate to a fair and honest verdict? If so, please signify by raising your hand. Let the record show there are none.
We believe that this line of questioning adequately and properly allayed the possibility of jury prejudice and partiality
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that Trill asserts on appeal. Consequently, we dismiss this claim.
Trill also contends that the trial court improperly permitted the admission of various portions of his discharge summary from Haverford State Hospital during the cross-examination of defense psychiatrist Dr. Perry Berman. Since neither the custodian who prepared the report nor a representative of Haverford State Hospital testified at trial, Trill asserts that the document was impermissible hearsay evidence and constitutes reversible error. We cannot agree.
Underlying the hearsay rule is the tenet of law that an out-of-court statement offered for a purpose apart from the truth of its contents, or to explain a course of conduct, is not hearsay. Commonwealth v. Belmonte, 349 Pa. Super. 1, 502 A.2d 1241 (1985). Dr. Berman's testimony indicated that he had relied on a "set of discharge summaries" in forming his professional opinion. On cross-examination, the Commonwealth's attorney sought to clarify this statement and ascertain the grounds upon which Dr. Berman had based his evaluation. Under our supreme court's holding in Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), a medical witness is permitted to express opinion testimony on medical matters based, in part, upon reports of others which are not in evidence, but upon which the expert relied. Here, the trial court reasonably concluded, from the somewhat conflicting testimony of Dr. Berman, that he had relied on the discharge summary in formulating his opinion. Consequently, we believe that the testimony admitted into evidence in no way violated those protections springing from the hearsay rule.
Trill next claims that the trial court misread the jury instructions regarding legal insanity and thereby generated confusion and disruption for the orderly deliberation of Trill's verdict. Specifically, Trill directs our attention toward three incidents wherein Judge Semeraro allegedly misstated the law. First, Trill objects to the insanity charge which stated:
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[A] person is legally insane if at the time of committing an alleged crime, he is laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he is doing, or if he does not know the nature and quality of the act, he does not know that what he is doing is wrong [emphasis added].
Trill complains that the word "not" should have been omitted in accordance with 18 Pa.C.S. § 315(b), and the Pennsylvania Suggested Standard Jury Instructions. The second allegation of error surrounds the allegedly improper reading of the following instruction: "I will tell you, however, that when a defendant is found guilty by reason of legal insanity, he may be subject to an immediate court proceeding to decide whether he should be committed to a mental treatment facility [emphasis added]." Trill asserts that the instruction should have read " not guilty by reason of legal insanity." Last, Trill complains that the following instruction was also improper: "I will tell you, however, that when a defendant is found not guilty by reason of insanity, he may be subject to an immediate court proceeding to decide whether he chould [sic] be committed to a mental treatment facility [emphasis added]." Trill insists that the case of Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), mandates that the court recite that "[the defendant] will be subject to an immediate court proceeding."
The scope of appellate review of a jury charge for reversible and prejudicial error requires that the charge be evaluated and considered as a whole. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987); Commonwealth v. Sweger, 351 Pa. Super. 188, 505 A.2d 331 (1986). The general effect of the jury charge controls because error will not be predicated upon isolated excerpts from the charge. Commonwealth v. Stanton, 316 Pa. Super. 397, 463 A.2d 19 (1983). Further, a trial court's deviation from the express language of the statutory instruction or a technical inaccuracy in the jury instruction which nevertheless adequately, accurately, and clearly expresses the law to the jury will not mandate reversal. Commonwealth v. Frey, 504 Pa. 428,
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A.2d 700 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1985); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986).
We agree with Trill that the trial court did in fact misstate the charge by inserting the word "not" in the first instance, and omitting it in the second. However, reading the charge as a whole, and considering that the trial court repeated the instructions correctly to the jury numerous times throughout the charge, we find no prejudicial error. Judge Semeraro's charge encompasses more than thirty-one transcribed pages of colloquy, involving lengthy discussions of complex areas of the law. It would be fatuous to require a trial judge to perform such a lengthy charge flawlessly on each attempt.
We also find Trill's distinction between "may" and "will" in the third allegation of error to be specious. Here, Judge Semeraro read the insanity instruction as it appears in the Pennsylvania Suggested Standard Jury Instructions on the Insanity Defense. See Pennsylvania Suggested Standard Jury Instructions -- Criminal § 5.01A (Revised Instruction Subcommittee Draft, Feb. 2, 1978). The instruction advocated by our supreme court in Mulgrew, which Trill cites as controlling, has been incorporated into the Pennsylvania Suggested Standard Jury Instructions. Commonwealth v. Belmonte, 349 Pa. Super. 1, 502 A.2d 1241 (1986). Accordingly, we cannot agree that this instruction was so erroneous as to constitute reversible or prejudicial error.
Trill's final claim of error surrounding the jury charge involves the assertion that the instruction of guilty but mentally ill is not mandatory, and may be waived by the defendant. He avows that by providing the jurors with the option to choose the guilty but mentally ill verdict without his consent, the court has effectively undercut his ability to present a successful insanity defense.
A common-sense reading of the Pennsylvania statutory scheme belies this allegation. Section 314 provides
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that when a person offers a defense of insanity, he may be found guilty but mentally ill if the trier of fact finds beyond a reasonable doubt that the person is guilty of an offense, was mentally ill at the time of the commission of the offense, and was not legally insane at the time of the commission of the offense. 18 Pa.C.S. § 314(a) (emphasis added). From the plain language of the statute, it logically follows that the jury must be charged on the guilty but mentally ill verdict whenever the insanity defense is set forth. One could not be found guilty but mentally ill, as the legislature has directed, if such a verdict is not made known to the jury panel. Bolstering this supposition are the comments of Dickinson School of Law professor Arthur Murphy, reporter to the Criminal Instructions Subcommittee of the Pennsylvania Supreme Court's Committee for Proposed Standard Jury Instructions. Professor Murphy advocates the use of the following instruction:
Because the defendant has asserted an insanity defense, you will have to consider four possible verdicts. In addition to "guilty" and "not guilty" which are available verdicts in a criminal case, you will have to think about the special alternatives of "not guilty by reason of insanity" and of "guilty but mentally ill."
Murphy, Legally Insane or Guilty but Mentally Ill: A Suggested Jury Instruction, 88 Dick.L.Rev. 344, 347 (1984) (emphasis added). This instruction was approved by the Subcommittee and will eventually be added to the Committee's manual of suggested criminal charges. In light of the foregoing, we find that the trial court properly charged the jury on the verdict of guilty but mentally ill.
Trill's last issue controverts the viability of Pennsylvania's guilty but mentally ill statute, 18 Pa.C.S. § 314. Trill mounts an impelling challenge to the statutory scheme implemented by our legislature; however, we conclude that his laudable effort has fallen short of its goal. The overwhelming authority generated by our sister states, many of which have been ...