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decided: August 10, 1988.


Appeal from the Order of the Superior Court at No. 89 Harrisburg 1984, dated March 7, 1986, Affirming the Judgments of Sentence at No. 82-10, 563 of the Court of Common Pleas of Lycoming County dated January 13, 1984. 356 Pa. Super. 591, 512 A.2d 54 (1986)


George E. Lepley, Jr., W. David Marcello, Williamsport, Philadelphia, for appellant.

Leonard N. Sosnov, John W. Packel, Philadelphia, for amicus curiae P.D. of Philadelphia.

Brett O. Feese, Kenneth A. Osokow, Williamsport, for appellee.

Robert A. Graci, Chief Deputy Atty. Gen., Harrisburg, for amicus curiae Atty. Gen., of Pennsylvania.

George S. Leone, Asst. Dist. Atty., Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Philadelphia, for amicus curiae D.A. of Philadelphia.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala Papadakos and Stout, JJ. McDermott, J., concurs in the result.

Author: Nix

[ 519 Pa. Page 202]


The issues raised in this appeal require us to determine, under subsection 314(a) of the Crimes Code, 18 Pa.C.S. ยง 314(a), whether there must be an assignment of the burden of proof, and if such an assignment is required, who possesses that burden of proving the offender was mentally ill at the time of the offense. We are also called upon to determine the measure of proof required to sustain such a finding. Because of the importance of these questions, we granted review. For the reasons that follow, we affirm the conviction of guilt but remand the matter to the trial court for reassessment of the evidence presented on the question of appellant's mental illness at the time of the commission of these offenses.*fn1

Appellant was charged with murder, robbery, theft, carrying a firearm without a license, and the possession of instruments of crime in the shooting death of a convenience store clerk during a robbery. At trial, he contended insanity or, in the alternative, mental illness. The court below, sitting without a jury, after hearing all of the evidence, concluded that the Commonwealth had established beyond a

[ 519 Pa. Page 203]

    reasonable doubt appellant's legal sanity at the time of the offense, and that appellant failed to establish, by a preponderance of the evidence, that he met the definition of mentally ill at the time the offense occurred. The trial court found appellant guilty of all of the charges. After the disposition of post-trial motions the court imposed a sentence of life imprisonment with a consecutive sentence of ten to twenty years for the conviction of robbery. On appeal to the Superior Court, three-judge panel affirmed the judgment of sentence by memorandum opinion and a per curiam order, 356 Pa. Super. 591, 512 A.2d 54 (1986).

On July 5, 1982, the Williamsport police were called to a convenience store where a clerk had been killed in the course of a robbery. The police obtained a description of a suspect from an eyewitness and began a search of the area. Thirty-five minutes after the shooting, the police stopped appellant and questioned him about the incident. The witness could not identify appellant, and he was released. Appellant then returned to the hotel where he maintained temporary lodging, obtained his bags, and checked out of the hotel. A cab dispatcher who was suspicious as a result of a conversation with appellant when the dispatcher inquired as to his destination, contacted police who intercepted appellant exiting the hotel. Appellant once again provided coherent responses to police questioning. In a satchel that appellant had in his possession the second time he was taken into custody was found the murder weapon, a money bag taken from the convenience store which was an object of the robbery, and other incriminating pieces of evidence.

Appellant presented the testimony of two mental health experts at trial. The first, a psychiatrist, diagnosed appellant soon after the incident as suffering from mental disease, paranoid schizophrenia. That witness expressed no opinion as to whether the illness existed at the time of the incident or whether appellant met the M'Naghten's Rule. The second expert, a clinical psychologist, also diagnosed appellant ...

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