Com. v. Dixon
| Decision Date | 24 June 1975 |
| Citation | 341 A.2d 147,235 Pa.Super. 415 |
| Parties | COMMONWEALTH of PENNSYLVANIA v. James DIXON, Appellant |
| Court | Pennsylvania Superior Court |
Vincent J. Ziccardi, Defender, John W. Packel, Chief, Appeals Div., Philadelphia, for appellant.
Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
Judgment of sentence reversed and the record remanded for a new trial.
HOFFMAN, J., files an opinion in support of reversal in which SPAETH, J., joins.
CERCONE, J., files an opinion in support of reversal in which JACOBS and SPAETH, JJ., join.
VAN der VOORT, J., files a dissenting opinion in which WATKINS, President Judge, and PRICE, J., join.
HOFFMAN, Judge (in support of reversal).
Appellant contends that his conviction should be reversed and a new trial granted in light of Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974), and Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974). 1
At approximately 7:30 p.m. on November 3, 1972, Officer Colella of the Philadelphia Police Department responded to a radio call that reported a disturbance in a bar located at 9th and Clearfield Streets in Philadelphia. The officer observed appellant wrestling on the floor with two other men. The officer left the bar to request additional assistance. In the interim, another officer, Edward McIlvaine, also answered the call. As Colella reentered the bar, he saw appellant attack McIlvaine with a bar stool. Appellant then knocked a woman from another stool and attacked Colella. The officers finally subdued appellant with their nightsticks. According to the officers' trial testimony, appellant carried on 'like a wild man' throughout the incident.
After appellant was hancuffed, a third officer, Stanley Pables, transported the appellant to the emergency room of Episcopal Hospital. Both Pables and Edward Turner, a Nursing Assistant at the hospital who testified as a defense witness, stated that when the handcuffs were removed in the emergency room, appellant became 'very wild' and that 'he just went berserk.'
Appellant was subsequently indicted and charged with assault and battery and resisting arrest. On February 22, 1974, the case was called for trial at which time appellant waived his right to a jury. On that date, the court heard all of the witnesses, including the appellant who gave his own account of the incident. The appellant did not contest the prosecution's account, but argued that he was not sane at the time of the incident. Appellant testified that he remembered having a couple of drinks in the bar and being struck from behind. The next thing that he recalled was waking up in the hospital. He admitted to having been hospitalized for seventeen days in 1968, at Trenton State Hospital for observations and for seven days in 1969, at Philadelphia General Hospital for treatment. After hearing appellant's testimony, the judge stated that he would defer adjudication and order a 'total psychiatric workup.' Finally, on May 15, 1974, appellant reappeared before the trial court which rejected appellant's claim of insanity and was found guilty on all bills. The court pronounced sentence of one to four years, to run concurrently, on the charges of assault and battery and assault and battery in resisting arrest.
The Supreme Court held in Commonwealth v. Rose, supra, that the Commonwealth has the burden in a first degree murder case of proving beyond a reasonable doubt the specific intent to kill. The Court held that it was reversible error to require that the accused prove his defense of intoxication by a preponderance of the evidence: 457 Pa. at 389, 321 A.2d at 884. In Commonwealth v. Demmitt, supra, the Court upheld the rule that the prosecution may prove a defendant's sanity by testimony of lay witnesses. See Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970). The Court did, however, underscore the principle of law that 'the Commonwealth can no longer rely upon a presumption of sanity, but instead must offer evidence to show that (the accused) was sane.' 456 Pa. at 483, 321 A.2d at 632. 'When the question of sanity is at issue and the presumption of sanity has disappeared the evidence must be sufficient to support a finding of sanity beyond a reasonable doubt.' 456 Pa. at 482, 321 A.2d at 631.
The Commonwealth contends that the holdings of Rose and Demmitt should not be applied retroactively. Essentially, the position of the Commonwealth is that because Rose was decided as a matter of state evidentiary law, its holding was not constitutionally mandated, and thus is not entitled to retroactive application. See, e.g., Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). There is language in Rose to support that conclusion: 457 Pa. at 386, 321 A.2d at 882--83. We are compelled to hold that Rose and Demmitt are retroactive by a recent decision of the Supreme Court. The Court filed the following per curiam opinion: Commonwealth v. Simms, --- Pa. ---, 333 A.2d 477 (filed February 11, 1975). The dissenting opinion of Chief Justice JONES leaves no question that the per curiam opinion decided the retroactivity issue: 'Even if the new evidentiary rule expressed therein is extended, it should not be given retroactive effect.' See also, Commonwealth v. Simms, 228 Pa.Super 85, 111, 324 A.2d 365 (1974) 2 (Hoffman, J. dissenting opinion). Simms was tried in advance of the Court's Rose and Demmitt decisions. 3
Therefore, because the Supreme Court has given retroactive effect to Rose and Demmitt, we reverse appellant's conviction and remand the case for a new trial at which the Commonwealth must prove beyond a reasonable doubt that appellant was sane at the time of the alleged offense.
SPAETH, J., joins in this opinion.
CERCONE, Judge. (in support of reversal).
I reluctantly support reversal of this case simply because, whenever no substantial principles would be compromised by accommodation, this court should vigorously strive to avoid affirmance based on equal division. In that regard, I have concluded that Judge Hoffman's estimation of the standards employed by the lower court in evaluating appellant's insanity defense are more likely correct. As indicated below, the courts of this Commonwealth had uniformly rejected the current principle provided by Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974)--that the Commonwealth must prove the sanity of the defendant beyond a reasonable doubt when some credible evidence has been offered to the contrary.
On the other hand, I disagree with the opinion of the dissenters that appellant herein failed to offer sufficient evidence to 'shift' the risk of non-persuasion to the Commonwealth; at least, I would not so hold as a matter of law. This being so, I still wish to record my view on the procedural aspect of this appeal.
This case was tried before a judge sitting without a jury on February 22, 1974. After the judge received the evidence, including Dixon's testimony that he had no recollection of the incident, he postponed adjudication of the case and ordered a psychiatric and neuropsychiatric report to be prepared. After receiving and analyzing the report, on May 22, 1974, the judge entered the sentences complained of herein.
In sum, the report indicated, as the trial judge found, that Dixon 'is a very hostile person who is unable to or refuses to control his impulses.' The report did conclude, however, that Dixon was competent to stand trial. On this basis the court determined that 'the defendant was able to have the requisite mens rea at the time of the incident.' Nowhere in the court's opinion is there any mention of Dixon's failing to show his insanity by the preponderance of the evidence, or even his failure to offer credible evidence sufficient to overcome the presumption of sanity. Furthermore, at the sentencing hearing the court clearly stated that it considered Dixon's insanity defense as going to his state of mind at the time the offenses were committed:
'If a person is totally out of it mentally, then, of course, he could not have mens rea. If he does have some understanding of what he is doing and is merely a hostile person who is unable to or refuses to control his impulses, he very well would have mens rea. . . . 'However, I do feel that after reading the reports, he just fails to control himself. Of course, your argument is he doesn't have the ability to control himself, whereas the psychiatrists feel that he does, to some degree, or at least to enough of a degree to make him competent.
One does not need an...
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