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decided: October 17, 1988.


Appeal from the Order of Superior Court at No. 827 Philadelphia 1986, dated October 23, 1986, affirming the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal Division at Nos. 4584-85/1983, entered February 18, 1986. 361 Pa. Super. 637, 517 A.2d 1366 (1986)


Michael S. Goodwin, Feasterville, John W. Packel, Philadelphia, for amicus -- Defender Assoc. of Phila.

Leonard N. Sosnov, Philadelphia, for appellant.

Alan M. Rubenstein, Dist. Atty., Doylestown, Stephen B. Harris, Warrington, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. McDermott, J., files a concurring opinion. Zappala, J., concurs in the result.

Author: Nix

[ 519 Pa. Page 552]


The issue presented in this appeal is whether section 315 of the Pennsylvania Crimes Code, 18 Pa.C.S. § 315,*fn1 which places the burden of proving insanity upon the criminal defendant by a preponderance of the evidence, violates Article I, section 9 of the Pennsylvania Constitution, which assures all persons due process of law. Despite the requirement that the prosecution prove each element of the crime charged, we do not believe that section 315 improperly places the burden upon the defendant to prove an element of the offense; and thus we reject appellant's attack upon the insanity statute.

Bernadette Reilly, the appellant herein, was charged with criminal homicide, 18 Pa.C.S. § 2501, and endangering the welfare of a child, 18 Pa.C.S. § 4304, in the death of her newborn child. At the time of the child's death in 1983, appellant had been residing with the Hatton family in Croydon, Bucks County, for approximately three (3) years along with her son. During 1980 appellant had given birth to another child which she relinquished for adoption. Throughout the 1980 pregnancy she denied her condition, and, upon giving birth, she was warned by Mrs. Hatton that were she to again become pregnant out of wedlock, she would no longer be welcome in her home. As nature would have it, appellant once again became pregnant. So as not to be thrown into the streets, she would not acknowledge her condition, although several members of the Hatton family stated at trial that they were aware of her pregnancy. As the condition became more noticeable, she explained

[ 519 Pa. Page 553]

    it as uncontrollable weight gain and later as a tumor. She failed to seek any type of prenatal care.

In the early morning hours of July 14, 1983, appellant gave birth to a live full-term female infant in an unattended home delivery. She informed no one of the birth, and spent most of the day in bed in a weakened condition caused by severe vaginal bleeding. Upon Mrs. Hatton's return that evening, appellant was persuaded to seek medical care for her condition. Appellant was admitted to Delaware Valley Medical Center where she continually denied having given birth. Nevertheless, hospital officials contacted Mrs. Hatton the following morning to inform her to search her home for the child which the officials believed appellant had delivered. A search of appellant's room revealed a green canvas garment bag containing a plastic bag in which the deceased infant had been wrapped. A further investigation of the room revealed a bloodied mattress which had been inverted, a book on childbirth which appeared to be bloodstained on the pages pertaining to the tying of the umbilical cord, and scissors ostensibly used to cut the cord. During police questioning following the search, appellant acknowledged that she gave birth to the child, but stated that the child did not move or cry, prompting her to shake the child.

At trial, the Commonwealth introduced the testimony of Dr. Halbert Fillinger, a forensic pathologist employed by the Philadelphia Medical Examiner's office. Dr. Fillinger had conducted an autopsy of the deceased infant on July 16, 1983, from which he concluded that the child died of various injuries, including a torn liver with blood in the abdominal cavity, contusions of the scalp with contusions of the brain, a bilateral subdural hemorrhage and a bilateral subarachnoid hemorrhage. He also noted that there had been very little skull molding and that the baby was prominently stained with meconium. He opined that the child had been born alive, and that the injuries were consistent with those inflicted by punching or hitting with a fist or blunt object. The Commonwealth also introduced a tape recording of a sodium amytol-induced interview with appellant wherein she

[ 519 Pa. Page 554]

    revealed that she did inflict blows upon the child's head and body.

The defense presented the testimony of Dr. Isidore Mihalakes, an independent forensic pathologist, in order to undermine the Commonwealth's theory of causation. Dr. Mihalakes, basing his conclusions in part upon Dr. Fillinger's autopsy report, stated that a subarachnoid hemorrhage may result from a decrease in oxygen to the brain and not necessarily from blows to the skull. He indicated that meconium staining also evinces a lack of oxygen and fetal distress.

Thereafter appellant presented the testimony of two mental health experts in furtherance of the issue of her sanity at the time of the incident. Dr. Arthur Boxer and Dr. Sharon Wainwright, psychiatrists who interviewed appellant with and without sodium amytol, both concluded that appellant did not know the nature and quality of her act and that she did not know what she was doing was wrong. Each doctor testified that appellant suffered a brief reactive psychosis at or immediately following the birth, causing her to break from reality. Under further questioning, Dr. Boxer stated that appellant's psychosis may not have developed until after the infanticide. Dr. Wainwright likewise testified that appellant was in touch with reality during the birth and that the break did not occur until after the infant's death. The Commonwealth presented no expert evidence as to the appellant's mental state at the time of the incident.

Based upon this evidence, the trial court sitting without a jury concluded that appellant had acted with recklessness and cruelty in taking the life of the child but did not form the specific intent to kill. Moreover, appellant had knowingly violated a duty of care with regard to the child. The court rejected the contention that appellant was unable to understand the wrongfulness or the nature and character of her act. It thus found her guilty of murder in the third degree and endangering the welfare of a child, and sentenced her to a period of incarceration of not less than 36

[ 519 Pa. Page 555]

    months nor more than ten years. The Superior Court affirmed by per curiam order entered October 23, 1986. 361 Pa. Super. 637, 517 A.2d 1366. We granted allocatur to consider the constitutionality of the insanity statute in light of the principles established in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Initially we note that appellant is not questioning the vitality of section 315 under notions of federal due process which stem from the fifth and fourteenth amendments to the United States Constitution. This very argument was unequivocally rejected, albeit in dicta, by the United States Supreme Court in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).*fn2 Therein the Court stated:

[ 519 Pa. Page 556]

[T]he Court confirmed that it remained constitutional to burden the defendant with proving his insanity defense when it dismissed, as not raising a substantial federal question, a case in which the appellant specifically challenged the continuing validity of Leland v. Oregon. This occurred in Rivera v. Delaware, 429 US 877, 50 LEd2d 160, 97 SCt 226 (1976), an appeal from a Delaware conviction which, in reliance on Leland, had been affirmed by the Delaware Supreme Court over the claim that the Delaware statute was unconstitutional because it burdened the defendant with proving his affirmative defense of insanity by a preponderance of the evidence. The claim in this Court was that Leland had been overruled by Winship and Mullaney [ v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)]. We dismissed the appeal as not presenting a substantial federal question. Cf. Hicks Page 556} v. Miranda, 422 US 332, 344, 45 LEd2d 223, 95 SCt 2281 (1975).

Id. at 205, 97 S.Ct. at 2324, 53 L.Ed.2d at 289.

The Court thus reaffirmed the position it took in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). See Hill v. Zimmerman, 542 F.Supp. 700 (M.D.Pa. 1982), vacated on procedural grounds, 709 F.2d 232 (3d Cir.1983).

Appellant concedes that section 315 passes muster under the federal constitution. She instead urges this Court to adopt an expansive interpretation to Article I, section 9 of the Pennsylvania Constitution. This proposition is not entirely without precedent, for we have on a number of occasions provided criminal defendants with greater protections under the provisions of our constitution than those furnished by their federal counterparts. See, e.g., Commonwealth v. Sell, 504 Pa. 46, 63-64, 470 A.2d 457, 466-467 (1983); Commonwealth v. Tate, 495 Pa. 158, 169, 432 A.2d 1382, 1387-88 (1981); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975). See also Brennan, State Constitutions and the Protection of ...

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