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decided: October 18, 1988.


Appellee Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, v. Trial Division, Criminal Section, Nos. 966, 968 February Term, 1981, Entered March 6, 1982.


Michael E. Floyd, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Donna G. Zucker, Robert A. Graci, Chief Deputy Attys. Gen., Philadelphia, for appellee.

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

Author: Papadakos

[ 519 Pa. Page 613]


The Appellant was convicted by a jury of murder of the first degree and possession of an instrument of crime for axing to death a stranger on a public bus containing five other passengers and was sentenced to death.

[ 519 Pa. Page 614]

The record indicates that he delivered approximately fifteen blows to the victim's head. Testifying that "voices" directed him to act, the Appellant also claimed to have been motivated by some alleged verbal provocation on the part of the victim. An armed security guard, who was a passenger on the bus, drew his weapon and pointed it at the attacker to prevent him from fleeing. Upon being subdued by armed police who arrived quickly at the scene, he was given an abbreviated rendition of Miranda warnings but nevertheless blurted out that "I did it; I'm glad I did it; I will get ten years for it but I hope he dies." An autopsy revealed that the victim's fingers and hands had been mutilated in the defensive act of covering his head. The Appellant was read the Miranda warnings formally at police headquarters after which he confessed once again in writing to the killing. He was twenty-one years old at this time.

Following his arrest and during trial, the Appellant was confined to mental hospitals under authority of the Mental Health Procedures Act, 50 P.S. § 7305 et seq. Because of prior mental illness, he also had been institutionalized as a patient before the killing. He was medicated during all legal proceedings against him. Two court hearings concluded that he was competent to stand trial. His attorney was not permitted to withdraw from the case despite testimony that the Appellant expressed a wish to be executed and that he did not want to be defended. In the midst of these proceedings, the Appellant also threatened witnesses, the prosecutor, and the jury in open court.

He was defended unsuccessfully on the grounds of insanity under the M'Naghten rule and inability to form the specific intent required for murder of the first degree. Under Regina v. M'Naghten, 10 Cl. and Fin. 200, 8 Fug. Rep. 718 (1843), insanity is a defense if the defendant, at the time of the act, was suffering from "such a defect of reason, a disease of the mind, as not to know the nature and quality of his act or, if he did know it, as not to know that what he was doing was wrong." This is the statutory language of 18 Pa.C.S.A. § 315(b). The M'Naghten Rule is

[ 519 Pa. Page 615]

    preserved specifically under § 314(d). He was found guilty of that murder and of possession of an instrument of crime. At the penalty stage, the Appellant instructed his defense counsel not to plead any mitigating circumstances. The penalty jury then found two aggravating circumstances under 42 Pa.C.S. § 9711(d)(7), "grave risk of death" to others, and (d)(8), torture, but no mitigating circumstances. He was sentenced to death for murder and to a concurrent term of imprisonment of one to two years for possession of an instrument of crime.

Following our mandatory review pursuant to 42 Pa.C.S.A. § 9711(h)(1), we conclude that the facts do not justify a finding of the aggravating circumstance of torture. We affirm the sentence in all other respects under 42 Pa.C.S.A. § 9711(c)(1)(iv) which provides that "the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstances or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances."

This appeal is based on the following allegations of error:

I. Suppression of Inculpatory Statements and Confession

Appellant's first argument is that his inculpatory statements to the police should have been suppressed because they were the product of a defective mental condition, and, therefore, his Miranda rights against self-incrimination could not have been waived by him either at the scene or at the police headquarters in a knowing, understanding, and intelligent manner. In addition, the Appellant maintains that the first Miranda warnings rendered by the police at the scene of the crime were not given immediately and were so abbreviated in content as to induce him to utter words of confession.

The Appellant was advised of his Miranda rights on two occasions during the night of the killing:

[ 519 Pa. Page 616]

    a. On the Bus.

Having been drawn to the carnage by a panic-stricken passenger, two police officers sped to the bus and entered with guns drawn. They observed the Appellant and the victim's body on the floor, they yelled "freeze" to the Appellant who quickly hid behind a seat. After approaching the Appellant who had stood up in a surrender posture, one officer directed him to lie on the floor and immediately straddled the Appellant between his legs. The second officer had left the bus hurriedly to talk to witnesses. Just prior to being handcuffed inside, the prisoner mumbled words to the straddling officer that he wanted to be shot, executed, and beaten. Handcuffs were applied, and at that point the officer quoted from several, but not all, of the Miranda rights:

Q. Now, when you called rescue, after you got back to the bus, did you give the defendant any information from any cards you had in your possession?

A. Also, yes, I did. Not from a card in my possession even though at all times I do possess a card with the Miranda warnings.

However, I didn't read the litany from the card. The defendant was on the floor at this time for my safety and Lieutenant Wilson's safety. Articles were taken from his possession.

Q. What were those articles?

A. A claw hammer was taken from Mr. Logan's outer coat pocket and a rubber mallet was taken from inside his coat pocket.

As the defendant was laying there from my memory I gave him a short explanation of his rights.

Q. Okay. Can you tell us as close as you possibly can what you told him?

A. I told him that he was under arrest. I told him he had a right to remain silent. Anything he can use -- anything he says can be used against him in a court of law and that an attorney would be provided for him. I

[ 519 Pa. Page 617]

    was cut short or maybe that's not the proper term, cut short.

But --

Q. Were you able to finish the litany of rights?

A. No sir, I was not.

Q. Why were you not able to finish?

A. Mr. Logan was saying words to me that I just didn't understand what he was saying. It didn't seem that -- I'm not saying -- I'm just not -- He just wasn't responding properly to what I was saying. (N.T., 2/5/82, pp. 42-43.)

Appellant was patted down. As noted in the testimony, a hammer and mallet were taken from his coat. Testimony at trial demonstrated also that Appellant seemed to be stating in somewhat garbled terms that he was "tired" of being provoked and that in prison he "was going to run the place."*fn1 As the Appellant was being led away through the bus, he blurted out that, "I did it; I'm glad I did it; I will get ten years for it but I hope he dies."

The arresting officer on the bus testified that in the clutch of those circumstances, he did not quote Miranda warnings immediately because he was engaged in the strenuous task of securing the Appellant in order to prevent harm to his own person, other officers, as well as to the prisoner himself. Other officers who had contact with the Appellant at the scene testified that they saw no evidence of the influence of drugs on the Appellant although he did appear to be excited. The officer who straddled and handcuffed the Appellant on the bus also stated on the record at trial that he had not engaged in any interrogation and had not asked the Appellant if the quoted Miranda warnings were being understood.

     b. At Police Headquarters

Uncontested police testimony shows that the Appellant was taken to the interview room of the Police Administration

[ 519 Pa. Page 618]

Building where he was read Miranda rights from the Standard Police Interrogation Card. Appellant orally indicated at that time that he understood each warning and even asked for clarifications. He then gave a confession which was written out by the interviewing officer who reduced it to typewritten form. Appellant read his typed confession aloud into a tape recorder and signed each page. Prior to giving this confession, he was advised again of the Miranda rights. The Appellant apprised the interviewing officer of the fact that he could read and write English because he had gone to the eleventh grade in school. He also denied any recent use of drugs except for a "reefer" which he had smoked several days before the crime. There was no evidence that the Appellant had been coerced or induced by the police into making the confession.

Appellant instantly claims that his mental illness, existing at the time he confessed, precluded any ability on his part to waive his rights in a knowing, voluntary, and intelligent manner. His inculpatory statements, he now claims, were involuntary a fortiori, and should have been suppressed. We disagree based on the recorded facts as well as the applicable law of this Commonwealth.

Our cases have held invariably that defendants with proven psychological defects are capable indeed of waiving their constitutional rights and giving voluntary confessions. See, Commonwealth v. Tucker, 461 Pa. 191, 335 A.2d 704 (1975); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972); Commonwealth v. Abrams, 443 Pa. 295, 278 A.2d 902 (1971); Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970), cert. denied, 401 U.S. 1004, 91 S.Ct. 1243, 28 L.Ed.2d 540 (1971); Commonwealth v. Willman, 434 Pa. 489, 255 A.2d 534 (1969); Commonwealth ex rel. Joyner v. Brierley, 429 Pa. 156, 239 A.2d 434 (1968). Our most recent decision to this effect is Commonwealth v. Bracey, 501 Pa. 356, at n. 7, 461 A.2d 775, at n. 7 (1983) in which "we note that a person with a mental illness including a

[ 519 Pa. Page 619]

    history of hallucinations and delusions may be capable of waiving her constitutional rights."*fn2

The voluntariness standard of Miranda requires that the prosecution prove by a preponderance of the evidence that the waiver is knowing and intelligent. This requires a two-step analysis. First, the waiver must have been voluntary in the sense that it was an intentional choice made without any undue governmental pressure; and, second, that the waiver must have been made with a full comprehension of both the nature of the right being abandoned and the consequences of that choice. We employ a totality of circumstances test in reviewing the waiver. Commonwealth v. Scarborough, 491 Pa. 300, 312-313, 421 A.2d 147, 153 (1980). We are bound also by the suppression court's findings of fact if they are supported by competent evidence.

Under these facts, the confession at police head-quarters was the product of a free, unconstrained, and rational choice of its maker. The Appellant was fully aware of the fact that the interrogation concerned an investigation

[ 519 Pa. Page 620]

    into the death of the victim, as required by Commonwealth v. Dixon, 475 Pa. 17, 22, 379 A.2d 553, 556 (1977). All other facts recited as part of the circumstances of this confession compel us to conclude that the Appellant waived his Miranda rights in full conformity with legal requirements. In the absence under our law of a per se rule that no waiver can be voluntary when made by a person who is mentally ill, we hold that the suppression court was correct. Despite his mental illness, the Appellant was aware of the nature of the right which he was surrendering and of the consequences of that choice. For these identical reasons, we reject the related allegation that counsel was ineffective for failing to employ psychiatric testimony at the suppression hearing to demonstrate that his mental illness prevented a proper waiver.

As to the inculpatory utterances made on the bus, at the outset we observe that they were blurted out freely and were not the results of any interrogation. Obviously they were not delusional for the reason that the Appellant knew full well that he had killed a person, could go to prison, and clearly articulated his motive for the act. Nor is there any need to be concerned about the abbreviated nature of the Miranda rights given from memory by the officer who straddled the Appellant on the bus. Under the circumstances of trying to restrain a person who had just hacked away violently at a victim's head, we find full justification for the officer's conduct in attending to the immediate requirements of the safety and security of all parties at the scene.

A corollary contention is that defense counsel was ineffective for failing to challenge the adequacy of the abbreviated Miranda warnings given on the floor of the bus as well as failing to give them immediately upon subduing and straddling the Appellant. As part of this complaint, the Appellant argues that the Omnibus Pre-Trial Motion was stated in such broad terms as to dissipate any specific reference to these discrete problems.

[ 519 Pa. Page 621]

The allegation is patently without merit. Faced with the bloody crisis of subduing an identified killer on a public bus justified fully the actions of the police in attending to the immediate demands of safety.*fn3

II. Competency to Stand Trial

Appellant's second allegation of error in this case is that he was incompetent to stand trial.

The record shows that following the hearings on the suppression motion, defense counsel requested an immediate competency hearing. Counsel informed the court at that time that his client was insisting on pleading guilty, demanding to be executed, and refusing to cooperate in the preparations for trial. Counsel also unsuccessfully requested that he be excused from the case for these reasons. The present allegation derives from this same set of demands that he be executed, threat of non-cooperation with his attorney, the fact that he had been earlier treated for mental disorders, that he remained hospitalized in the care of psychiatrists since his arrest, and that his behavior during trial which included outbursts of laughter, threats to witnesses and the prosecuting attorney, and a public threat to kill members of the jury. It is alleged in this appeal that, viewed in these aggregate behavior patterns, the Appellant should not have been tried because he was incompetent.

Two competency hearings were held by the court. Both times he was found to be competent to stand trial. Psychiatric testimony, of course, was crucial to these evaluations. Examining the Appellant on the eve of the trial, the court psychiatrist argued that he was incompetent to stand trial

[ 519 Pa. Page 622]

    on that day but that a final decision on competency should be left to the specialist who was conducting the hospital treatment.*fn4 The treating psychiatrist, in turn, declared the Appellant to be competent because he knew the nature of the charges, the function of the court, possible penalties (including death sentences), and the purposes of the prosecutor and defense counsel. The defense psychiatrist, Dr. Gary M. Glass, on the other hand, testified that the Appellant was unable to "process what is in his own best interests." Pertinent testimony by the defense psychiatrist is as follows:

A. It is my professional understanding and my professional role that many of these people, the vast majority of these people are not making a rational choice free of emotional disorder about whether they can live or should live or should die. I think Ronald is in that situation right now. I believe he cannot make a rational choice about his own defense because at this point in time, he is seeing himself in a very depressed state and is choosing to act in very self-destructive ways.

Q. Well, Doctor, don't you -- do you realize that the defendant doesn't have to put on any evidence, he doesn't have to do anything in this case, that he has no burden to produce any evidence. Do you understand that?

A. Yes, I do.

Q. Doctor, is it your testimony that this defendant is unable to assist his attorney in his own defense?

The witness: I think he is primarily incapable at this time of acting in his own behalf or processing what needs to be processed to make those decisions. (N.T., 2/22/82, pp. 27-28.)

[ 519 Pa. Page 623]

At the conclusion of the expert testimony, the trial court held that the Appellant was competent to go to trial. In reaching this determination, the court underscored the distinction between an incapacity to assist in a defense and an unwillingness to do so. On this basis, it was held that the defense's own psychiatrist, in fact, characterized the Appellant's state of mind as falling into the latter category. Moreover, the court found that the Appellant had failed to meet his burden of proof of demonstrating incompetency by clear and convincing evidence as required by the Mental Health Act of 1976, 50 P.S. § 7403(a): "The moving party shall have the burden of establishing incompetency to proceed by clear and convincing evidence. The determination shall be made by the court."*fn5

Our most recent decision on this subject is Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987):*fn6

The test to be applied in determining the legal sufficiency of [a defendant's] mental capacity to stand trial . . . is . . . his ability to comprehend his position as one accused of murder and to cooperate with his counsel in making a rational defense. See Commonwealth v. Moon, [383 Pa. 18, 117 A.2d 96 (1955)], and Commonwealth ex rel. Hilberry v. Maroney, [417 Pa. 534, 544, 207 A.2d 794, 799 (1965)]. Or stated another way, did he have sufficient ability at the pertinent time to consult with his lawyers with a reasonable degree of rational understanding and have a rational as well as factual understanding of the proceedings against him. See, Dusky v. United States, 362 U.S. 402 [80 S.Ct. 788, 4 L.Ed.2d 824] (1960). Otherwise, the proceedings would lack due process: Bishop v. United States, 350 U.S. 961 [76 S.Ct. 440, 100 L.Ed. 835] (1956).

The fact that a defendant raises a bizarre response to his counsel's strategy, or refuses to cooperate with that strategy,

[ 519 Pa. Page 624]

    or displays childish and threatening behavior at trial does not necessarily constitute legal incompetency. Under Banks, supra, 513 Pa. at 343, 521 A.2d at 13, " The issue is the defendant's ability to cooperate and not whether he is actually cooperating." (Italics in the original.) Under this rule, there is sufficient evidence to support the lower court's ruling on competency. In addition to psychiatric testimony, the record discloses that the Appellant helped to select jurors, and, as noted by the trial judge, his own statements on the witness stand even evinced a sufficient degree of rationality to enable him to recognize the existence of his own illness.*fn7 While admittedly he suffered from a mental illness, there are no facts which would lead an appellate court to decide that he did not understand to a clear and convincing degree the nature and function of a criminal trial. The determination of competency, lastly, rests in the sound discretion of the trial judge and can be disturbed only upon a showing of abuse of that discretion. Banks, supra, 513 Pa. at 341, 521 A.2d at 12, and cases cited therein. We agree with the lower court's decision that the Appellant was competent to stand trial but chose rationally not to assist in his own defense, and we reject appellate counsel's citation of error.

III. Did the Trial Court Err in Directing Defense Counsel to Provide the Prosecution with a Report of a Defense Psychiatrist?

The Appellant argues that the psychiatric report of his own expert, Dr. Gary M. Glass, dated February 17, 1982,

[ 519 Pa. Page 625]

    should not have been subject to discovery by the Commonwealth under Pa.R.Crim.P. 305(C)(2)(a):

(2) Discretionary With the Court:

In all court cases, if the Commonwealth files a motion for pretrial discovery, the court may order the defendant subject to the defendant's rights against compulsory self-incrimination, to allow the attorney for the Commonwealth to inspect and copy or photograph any of the following requested items, upon a showing of materiality to the preparation of the Commonwealth's case and that the request is reasonable:

(a) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief, or which were prepared by a witness who the defendant intends to call at the trial, when the results or reports relate to the testimony of that witness, provided the defendant had requested and received discovery under paragraph B(1)(e);

The record of testimony indicates that on direct examination, Dr. Glass was limited to statements regarding the Appellant's general mental state at the time of the crime and whether the Appellant was mentally capable of forming a specific intent to kill. Defense counsel did not question the witness on the particular subject of insanity under M'Naghten. On cross-examination, however, the prosecution elicited testimony on both issues of the mental state required to form specific intent and insanity. Dr. Glass testified that he believed that while the Appellant was sane at the moment of the killing, specific intent was not present. Following cross-examination, the prosecution moved successfully over objection to obtain a copy of the expert's report.

The Appellant now insists that although the substance of the medical report itself does address specific intent as well as M'Naghten, the insanity issue was not brought out on

[ 519 Pa. Page 626]

    direct testimony. The report, therefore, could not relate to the expert's testimony and be subject to discovery as required by the statute. Once in possession of the report, the Appellant further argues, the Commonwealth could prejudice him by revealing to the jury that his own expert had bolstered the damaging oral testimony on insanity with an existing written statement which repudiated that very defense.

In rejecting the Appellant's contentions, we take special note of the fact that the psychiatric report was not introduced at trial. We conclude, in addition, that the expert's direct testimony of the Appellant's mental state regarding specific intent addressed the contents of the medical report.

The insanity defense had been put on the record earlier by the Appellant. Under any sensible analysis, the psychiatrist's statement ran in an indistinguishable manner to the issue of whether the Appellant was insane under M'Naghten. That is to say that the testimony regarding mental illness directly touched and concerned the insanity problem. It makes very little sense to draw non-existent distinctions from this evidence. By employing the phrase "may order," we conclude further that the statute empowers ...

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