Com. v. Butler

• Decision Date: 18 July 1961
• Parties: COMMONWEALTH of Pennsylvania v. John Francis BUTLER, Appellant.
• Court: Pennsylvania Supreme Court

Page 468

173 A.2d 468

405 Pa. 36

COMMONWEALTH of Pennsylvania v. John Francis BUTLER, Appellant.

Supreme Court of Pennsylvania.

July 18, 1961.

Rehearing Denied Aug. 31, 1961.

Marjorie Hanson Matson, H. David Rothman, Pittsburgh, for appellant.

Edward C. Boyle, Dist. Atty., Samuel Strauss and William Claney Smith, Asst. Dist. Attys., Pittsburgh, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

EAGEN, Justice.

The defendant, John F. Butler, was indicted for murder. A jury trial under the 'Split Verdict Act' of Dec. 1, 1959, P.L. 1621, § 1, 18 P.S. (supp.) § 4701, resulted in a verdict of guilty of murder in the first degree with the punishment fixed at death. A new trial was denied. From the judgment of conviction and sentence, this appeal is prosecuted.

The facts, as disclosed by the testimony, may be briefly summarized as follows: The defendant was sentenced to the Eastern State Penitentiary for a period of from four to ten years following his conviction in Northumberland County for armed robbery, involving five Catholic priests residing in a monastery in Mount Carmel, Pennsylvania. In April 1959, he was confined under this sentence in the State Correctional Institution in Pittsburgh. He presented a petition for a writ of habeas corpus in the courts of Northumberland County alleging irregularities in his conviction and sentence. A hearing on this petition being ordered, the defendant was returned to that county to permit his attendance. The petition was then withdrawn upon the advice of counsel, who concluded the factual assertions therein were not true. On the following day, while being returned to the institution in Pittsburgh by James R. Lauer, the Sheriff of Northumberland County, in an automobile operated by an aide, one Martin Diehl, Butler shot and killed the sheriff. He escaped and was apprehended the following day.

Immediately before the shooting, the defendant was in the back seat of the automobile, restrained by handcuffs, which were fastened to a leather belt. Sufficient looseness was allowed to permit him to raise his hands for the purpose of smoking. Sheriff Lauer was sitting in the front seat with the driver; the sheriff's gun lying under a paper on the seat between them.

After leaving the Pennsylvania Turnpike at the Perry interchange, the party inadvertently made a wrong turn. It was raining very hard and visibility was poor. After inquiry, they turned around and were headed back in the direction of the institution, when suddenly the defendant 'lurched' over the front seat and grabbed the gun. The sheriff, jumped into the back seat and tried to seize the defendant, yelling, 'John, don't do it.' The defendant said, 'Let me go Jim or I'll kill you.' The driver, Diehl, hurriedly pulled the car over to the side of the road, jumped out and opened the rear door. The sheriff was then lying on his side on the floor between the seats, with his head raised in the corner on the driver's side of the car. The defendant was on the back seat, crouched in the opposite corner of the car. At that moment the gun was fired. ¹ The defendant said to Diehl, 'I'll get you.' The latter ran down the road for assistance and the defendant disappeared into the woods.

Several trial errors are urged in support of the contention for a new trial. We shall discuss them ad seriatim.

The testimony of the Commonwealth as to the incidents surrounding the fatal shooting was uncontradicted. The defendant did not take the stand or offer testimony in denial during that portion of the trial wherein his guilt or innocence was decided, ² and at no time did he deny firing the fatal shot. The sole defense was insanity and the testimony offered in support of this was that of a psychiatrist, Dr. Jacobs, who first examined the defendant one year after the offense was committed. This witness also studied and considered the results of tests given by a psychologist; the reports and evaluations of both the Behavior Clinic of Allegheny County and the Diagnostic Clinic of the penitentiary; and, the defendant's case history. Ho opinionated that the defendant manifested 'a personality pattern disturbance, a schizoid personality with psychopathic features.' He further expressed the belief that, at the exact moment the shooting occurred, the defendant was in a temporary state of confusion and panic and unable to understand the value and consequence of his acts or to distinguish right from wrong. He also stated that in his opinion, the defendant was legally sane at all times when he examined him, and legally sane at all times except for a short period of time during which the shooting occurred.

In rebuttal, the Commonwealth called as its witness a psychiatrist employed at the Mayview State Hospital. He testified that, during his examination of the defendant, he found no evidence of psychosis or neurosis of any type, nor any indication of mental irresponsibility. The Commonwealth also called as witnesses Dr. Davis, a psychiatrist, and Dr. Grove, a psychologist, both employed by the Allegheny County Behavior Clinic. The admission of this latter testimony is vigorously urged to be prejudicial error.

Three principle objections have been raised to the testimony of Dr. Davis and Dr. Grove: (1) That since they were employees of the Behavior Clinic, an arm of the court, permitting them to testify was a departure 'from traditional methods of procedure protected by the Pennsylvania Constitutional requirement that 'trial by jury shall be as heretofore.' (2) That permitting this testimony violated the defendant's constitutional rights compulsory self-incrimination. (3) That permitting this testimony violated the requirements of fundamental fairness inherent in the requirements of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.

The Behavior Clinic of Allegheny County was established in the year 1938, by order of the court. It is staffed with specially trained professional personnel, who examine individuals arrested and charged with crimes of a certain nature (including murder) and prepare psychological and psychiatric evaluations. This information is primarily for use by the court in the disposition of cases. When the defendant, Butler, was first arrested, upon the advice of counsel, he repeatedly refused such an examination. Dr. Davis discussed with his counsel the advisability of conducting an examination of the defendant and her wishes in regard thereto. She stated she desired the matter deferred. Later on, counsel informed Dr. Davis that the examination met with her approval, and it was subsequent to this (January 5, 1960) that the examination began. ³ The defendant admitted in his testimony at the hearing on the penalty that, on advice of counsel, he submitted to the examination voluntarily and willingly.

Following the examinations of the defendant by Dr. Davis and Dr. Grove, the district attorney, upon petition, secured an order from the court permitting the use at trial of the testimony of the clinic's personnel by either side. Notice of this action was given to the defendant's counsel before the trial began. In addition, the nature of Dr. Davis' testimony was well known to both sides, having been disclosed in a preliminary proceeding, wherein counsel for the defendant sought court to appoint a psychiatrist and psychologist at county expense. ⁴

Dr. Grove testified that he found no indication of psychosis. Dr. Davis testified that, in his opinion, the defendant was legally sane at the time of the shooting, could differentiate between right and wrong and knew what he was doing. These conclusions were made upon the basis of personal interviews with, and observations of, the defendant. The results of a Stanford-Binet perception test and the Wechsler-Bellevue Intelligence Test, plus a diagnostic and summary report received from the Eastern State Penitentiary, as well as a statement given by the defendant to the authorities following his arrest, were also studied and considered before these conclusions were reached.

The testimony of these witnesses was properly admitted. No constitutional rights of the accused were violated. The examinations ensued only after the defendant and his counsel expressed a willingness that they proceed. Any information gained therefrom was with their consent and approval. ⁵ It is stretching the truth to now say that this, in effect, was compelling the defendant to disclose self-incriminating facts. The privilege against self-incrimination does not prohibit the introduction of evidence given by a defendant voluntarily: Commonwealth v. Bryant, 1951, 367 Pa. 135, 79 A.2d 193, certiorari denied 341 U.S. 954, 71 S.Ct. 1007, 95 L.Ed. 1376. In addition, the personal characteristics and behavior of the defendant were open and observable to these doctors during his incarceration. This is not information of a written or spoken nature which the constitutional privilege against self-incrimination is designed to protect. See 32 A.L.R.2d 432; State v. Myers, 1951, 220 S.C. 309, 67 S.E.2d 506; Hunt v. State, 1946, 248 Ala. 217, 27 So.2d 186; Ingles v. People, 1933, 92 Colo. 518, 22 P.2d 1109; Commonwealth v. Di Stasio, 1936, 294 Mass. 273, 1 N.E.2d 189; Noelke v. State, 1938, 214 Ind. 427, 15 N.E.2d 950. In Commonwealth v. Musto, 1944, 348 Pa. 300, 35 A.2d 307, this Court held that the constitutional immunity from self-incrimination does not apply even to a compulsory examination to determine the defendant's physical or mental condition for the purpose of enabling the examiner to testify in regard thereto, provided the defendant is not compelled to answer any questions propounded to him by the examiner. See also, Commonwealth v. Kravitz, 1960, 400 Pa. 198, 161 A.2d 861. This defendant disclosed nothing under compulsion as the record renders abundantly clear. While in view of the present facts this further comment...