Com. v. Vogel

• Decision Date: 13 July 1970
• Citation: 440 Pa. 1,268 A.2d 89
• Parties: COMMONWEALTH of Pennsylvania v. Dennis M. VOGEL, Appellant.
• Court: Pennsylvania Supreme Court

Page 89

268 A.2d 89

440 Pa. 1

COMMONWEALTH of Pennsylvania v. Dennis M. VOGEL, Appellant.

Supreme Court of Pennsylvania.

July 13, 1970.

Robert D. O'Connor, Lock Haven, for appellant

[440 Pa. 5] Allan W. Lugg, Lock Haven, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN O'BRIEN, ROBERTS and POMEROY, JJ.

ORDER

PER CURIAM:

Judgments of sentence reversed and new trial granted.

JONES, J., files Opinion in Support of Order, in which O'BRIEN, J., joins.

ROBERTS, J., files Opinion in Support of Order.

POMEROY, J., files Opinion in Support of Order.

COHEN, J., concurs in the result.

BELL, C.J., files a dissenting Opinion, in which EAGEN, J., joins.

OPINION IN SUPPORT OF ORDER

ROBERTS, Justice.

While I agree that appellant is entitled to a new trial, I cannot agree with the refusal to place the burden on the Commonwealth of proving appellant's sanity beyond a reasonable doubt. One of the most fundamental principles in our criminal law is that it is for the State to prove, beyond a reasonable doubt, all the elements of a crime. Equally fundamental is the principle that murder is not, in Mr. Justice Frankfurter's words, merely 'a muscular contraction resulting in a homicide.' Leland v. Oregon, 343 U.S. 790, 802, 803, 72 S.Ct. 1002, 1009, 96 L.Ed. 1302 (1952) (dissenting opinion). ¹ For a defendant to be guilty of murder, the 'muscular contraction' must be coupled with a mens rea--'malice aforethought express or implied.' Commonwealth v. Drum, 58 Pa. 9, 15 (1868). This mens rea is as much an element of the crime of murder as is the physical act of killing.

If mens rea, or intent, is an element of the crime of murder, the capacity to form that intent, i.e., legal sanity, must likewise be an element of the crime. Clearly 'it is necessary, in order to prove the intent I would adopt the rule which is now in effect in at least twenty-two of the States and in the federal courts. See cases cited in 17 A.L.R.3d 158--59. These jurisdictions, taking for granted that most men are sane, do not initially require the prosecution to prove sanity, for it will be presumed. But if the defendant introduces evidence indicating that he is not sane, the presumption can no longer be relied upon by the State and the prosecution must prove sanity, as it must all other elements of the crime, beyond a reasonable doubt. ²

to show that the perpetrator was capable of forming the requisite intent.' Bradford v. State, 234 Md. 505, 512, 200 A.2d 150, 154 (1964). I therefore cannot agree with the assertion that '(a)n individual may Intentionally kill someone, with malice aforethought,' even though he is legally insane, i.e., legally incapable of forming the intention. Legal sanity is an essential element of the crime of murder and must be an issue for the Commonwealth to prove beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). [440 Pa. 16] Thus I believe that the trial court was in error in the instant case when it charged the jury that the burden was on the defendant to prove by a preponderance of the evidence that he was Not sane. This charge, in effect, required the defendant to disprove an element of the crime of murder and I do not believe this to be proper.

Under the charge used in the instant case the jury could very well have had a reasonable doubt as to a defendant's sanity, and hence his guilt, and yet have convicted him because they were charged that the defendant must prove he was Not sane. Compare Brock v. United States, 387 F.2d 254 (5th Cir. 1967) (granting new trial where the government produced only a single lay witness to rebut government psychiatrist's testimony that defendant was not legally sane). I do not think we can or should permit such a verdict to stand. As Mr. Justice Harlan, speaking for the United States Supreme Court over seventy years ago, stated:

'How, then, upon principle, or consistently with humanity, can a verdict of guilty be properly returned, if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, namely, the capacity in law of the accused to commit that crime?'

Davis v. United States, 160 U.S. 469, 488, 16 S.Ct. 353, 358 (1895).

I therefore concur only in the grant of a new trial.

OPINION

IN SUPPORT OF THE ORDER

JONES, Justice.

On August 1, 1962, Dennis Vogel shot and killed two persons during the course of an armed robbery. Immediately thereafter, Vogel returned to his home, packed his car and, with his wife and infant child, drove to Canada for a previously planned vacation. On August 2, 1962, Vogel was arrested by Canadian officials in response to a radio communication from the Pennsylvania police. The police officers searched the trunk of Vogel's car and found the fruits of the robbery--cash, money bags and green stamps.

At his trial, in the Court of Common Pleas of Clinton County, in February of 1968, Vogel pleaded not guilty by reason of insanity, producing in support of his insanity claim evidence of his discharge from the Air Force because of mental illness and the testimony of various lay and expert witnesses. No useful purpose would be served by a repetition of all of this voluminous testimony; it is sufficient that it be noted that, from his early teens, Vogel displayed erratic and often bizarre conduct. Illustrative thereof is the testimony of Vogel's former wife that she interrupted a war game Vogel was playing, with M & M candies representing soldiers. 'He liked the green ones, I don't know why, but he had the greens on one side and the orange on the other side, and he would make all of the other colors more like troops to help the other side. Q. You mean like reserves or something like that? A. Yes, and so just for the fun I reached down and I grabbed an M & M and I popped it in my mouth and he got furious at me because it wasn't dead yet. Q. The M & M wasn't dead yet? A. Yes, the M & M wasn't dead yet. It was not a soldier that was killed, in other words.'

The defense offered the testimony of three eminently well-qualified psychiatrists to establish Vogel's legal insanity. Once again, the testimony being quite lengthy, I will not repeat it but merely quote the doctors' conclusions. Dr. Leslie R. Angus, the Assistant Superintendent of the Danville State Hospital, testified as follows:

'A. My opinion is that he was unquestionably, legally insane at the time he was alleged to have committed this crime on August 1, 1962.

Q. You say that without the slightest hesitation?

A. Without the slightest hesitation.'

Dr. Bernard J. Willets, the Assistant Superintendent and Clinical Director of Farview State Hospital, treated the defendant for five and one-half years between the time of his arrest in 1962 to the time of his trial in 1968. ¹ The doctor summarized his testimony as follows: 'In my opinion, Dennis Vogel was legally insane at that time (August 1, 1962).' Dr. Robert Sadoff, a privately-practicing psychiatrist from Philadelphia, who was also the Clinical Director of the Forensic and Diagnostic Hospital at Holmesburg Prison, testified as follows: 'My opinion, based on the facts, and based on my examination of him, (is) that he was legally insane, at the time, on August 1, 1962.'

The Commonwealth offered no direct evidence which either rebutted or impeached any of the testimony as to Vogel's insanity. Rather, the prosecution relied upon the presumption of sanity and the testimony of various witnesses as to the circumstances surrounding the robbery and killings. Such testimony was summarized by the court below, in its opinion, as follows: 'Defendant's prior threats to kill the deceased Atwood (the manager of the store); his debts and financial problems; the day before the killing he was seen across the street looking over the Grant store; the acts took place after 12 o'clock noon after the store was closed; after the killings ransacking the safe, taking over $800 in cash and taking Mrs. Rechel's pocketbook, and other items from the store; throwing away a .22 calibre revolver purchased by him sometime before the killing; within an hour after the crime fleeing with his wife and child to Canada; warning his wife not to look into the trunk where he had placed most of the stolen items; as the police were coming into the restaurant in Canada where he and his wife had gone to eat, attempting to pass a large roll of bills to his wife and when she refused to take it, to place it in her blouse.'

The jury found Vogel guilty of armed robbery and on two counts of murder in the second degree, in spite of an adequate and comprehensive charge on the doctrine of felony murder. He was sentenced to serve ten to twenty years in prison for the armed robbery and for the first count of murder. He was further sentenced to life imprisonment on the second count of murder, the trial judge relying on the Act of June 24, 1939, as amended, December 1, 1959, P.L. 1621, § 1, 18 P.S. § 4701. The trial court dismissed Vogel's motion for a new trial, and he now appeals from the judgments of sentence.

I will first deal with Vogel's claim that Section 701 of the Penal Code, referred to above, is not applicable to a defendant charged with having committed multiple murders at or about the same time. Section 701 provides: 'Whoever is convicted of the crime of murder of the second degree is guilty of a felony, and shall, for the first offense, be sentenced to undergo imprisonment by separate or solitary confinement not exceeding twenty (20) years, or fined not exceeding ten thousand dollars, or both, and For the second offense, shall undergo imprisonment for the period of his natural life.' (Emphasis added)

As employed in this statute, the term 'second offense' means a Subsequent murder, a murder which was committed after a conviction for a prior murder, and which was not part of the same transaction or occurrence which led to the first murder. Cf. Commonwealth v. Swingle, 403 Pa. 293, 169 A.2d 871, cert....