Commonwealth v. Flynn
| Decision Date | 20 May 1983 |
| Citation | 460 A.2d 816,314 Pa.Super. 162 |
| Parties | COMMONWEALTH of Pennsylvania, v. Thomas J. FLYNN, Appellant. |
| Court | Pennsylvania Superior Court |
Submitted Feb. 24, 1982. [Copyrighted Material Omitted]
Charles B. Coleman, Asst. Public Defender Reading, for appellant.
George C. Yatron, Dist. Atty., Reading, for Commonwealth, appellee.
Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
Appellant Thomas J. Flynn, was convicted by the Honorable Arthur Saylor of rape, [1] indecent assault, [2] robbery, [3] burglary, [4] theft, [5] and two violations of the Pennsylvania Uniform Firearms Act. [6] Following the denial of post-verdict motions, appellant was sentenced to ten to twenty years imprisonment for rape, to run consecutively to the sentence appellant was already serving, and concurrent terms of imprisonment totalling ten to twenty years for the remaining charges. In this appeal, appellant argues that (1) the evidence supporting his convictions was insufficient, contrary to the law and evidence and against the weight of the evidence, (2) the lower court erred in denying his motions to suppress identification evidence, (3) the lower court improperly permitted a psychiatrist to testify over his claim of psychiatrist-patient privilege, and (4) his sentence was excessive. For the following reasons, we reverse the judgment of sentence for violating the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A. § 6103, vacate the judgments of sentence for indecent assault and theft and affirm the judgments of sentence for the remaining charges.
In deciding the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981); Commonwealth v. Stockard, 489 Pa. 209, 212-213, 413 A.2d 1088, 1090 (1980). It is settled law that while guilt may be proved by direct or circumstantial evidence, it may not rest upon mere suspicion or conjecture. Commonwealth v. Gray, 297 Pa.Super. 123, 125, 443 A.2d 330, 331 (1982); Commonwealth v. Jones, 291 Pa.Super. 69, 72, 435 A.2d 223, 225 (1981); Commonwealth v. Beauford, 286 Pa.Super. 297, 300, 428 A.2d 1000, 1002 (1981). Using this standard, the facts adduced at appellant's trial may be summarized as follows.
On the morning of September 29, 1979, Beverly Gehris was working at the Skyland Factory Outlet in Reading, Pennsylvania when appellant appeared with a transparent stocking over his head. When Gehris screamed, appellant told her not to scream again or "I'll kill ya." Gehris noticed that appellant had his hand on a gun at his waistline. Appellant next asked Gehris for the keys to the cash register, disappeared momentarily, and then returned. Before he left the store, appellant forced Gehris to disrobe and have sexual intercourse with him. After the incident, Gehris discovered that $133 was missing from the cash box and also a canvas bag containing $50 in change.
At trial, Gehris unequivocally identified appellant as her assailant.
Appellant, testifying in his own defense, stated that he was asleep on the morning of September 29 and did not awake until that afternoon. Alternatively, he averred that he "wasn't too well" that day, having been released from a hospital a few weeks earlier, after which time he felt the Holy Spirit, thought he saw the devil and heard voices. (N.T. 104). Appellant did not recall, however, if he heard voices on September 29; he did not see the devil on that date.
Also testifying for the defense was psychiatrist Joel Podolsky. Dr. Podolsky, who examined appellant at his counsel's request on November 28, 1979, diagnosed him as paranoid schizophrenic. While Dr. Podolsky was aware that appellant had received a similar diagnosis when he was hospitalized in August, 1979, he could not state an opinion as to whether appellant continued to suffer from that condition after August. He was, moreover, unable to form any opinion regarding whether appellant was criminally responsible for the acts he allegedly committed on September 29. In fact, Dr. Podolsky was "skeptical" whether anyone could render such a hindsight opinion.
In rebuttal, the Commonwealth presented the testimony of Dr. Philip Rodenberger, a psychiatrist who treated appellant at Reading Hospital from August 8-August 11 and August 27-August 31 for paranoid schizophrenia. In Dr. Rodenberger's opinion, appellant was legally sane when discharged on August 31 and, although he never evaluated him at the time of these crimes, also was of the opinion that appellant was criminally responsible on September 29.
At the conclusion of trial, the lower court made the following findings: (1) appellant committed each of the acts charged beyond a reasonable doubt, (2) appellant knew the nature and quality of his acts and that his acts were wrong beyond a reasonable doubt, and (3) even without the Commonwealth's rebuttal evidence, appellant's sanity was established beyond a reasonable doubt by lay witnesses. (N.T. 191).
Appellant states that the evidence was insufficient because his convictions were based solely on Ms. Gehris' testimony. Specifically, appellant argues that (1) no medical evidence that a rape was committed was offered by the prosecution, (2) the victim's description of appellant's appearance was contradictory and also unreliable because she was emotionally distressed throughout the incident, and (3) his identification by the victim was the product of a suggestive preliminary hearing procedure.
Appellant's first claim is easily disposed of for it is settled that the victim's uncorroborated testimony, if believed, is sufficient to support appellant's rape conviction. See Commonwealth v. King, 287 Pa.Super. 105, 109-110, 429 A.2d 1121, 1123 (1981); Commonwealth v. Stoner, 284 Pa.Super. 364, 369, 425 A.2d 1145, 1148 (1981). 18 Pa.C.S.A. § 3106. As to appellant's second claim, the effect, if any, of the victim's emotional distress on her description of appellant's appearance goes to the weight of the evidence and is within the province of the factfinder. Similarly within the province of the factfinder is the consideration of any variances in testimony for this goes to the credibility of witnesses and not the sufficiency of the evidence. Commonwealth v. Galloway, 495 Pa. 535, 539, 434 A.2d 1220, 1222 (1981). We find no basis for concluding that the victim's testimony was "so unreliable and/or contradictory as to make a verdict based thereon pure conjecture..." Commonwealth v. Cristina, 481 Pa. 44, 51, 391 A.2d 1307, 1310 (1978), cert. denied, 440 U.S. 925, 99 S.Ct. 1255, 59 L.Ed.2d 479 (1979). Finally, since we conclude that Ms. Gehris' identification of appellant was independently based, any suggestiveness which may have occurred at the preliminary hearing did not render her in-court identification inadmissible. See pp. 821 infra.
We, thus, find the evidence sufficient to support appellant's convictions for each of the crimes charged with the exception of 18 Pa.C.S.A. § 6103. [7]
We must, however, reverse appellant's judgment of sentence for violating 18 Pa.C.S.A. § 6103. [8] That section provides as follows:
§ 6103. Crimes committed with firearms
If any person shall commit or attempt to commit a crime of violence when armed with a firearm contrary to the provisions of this subchapter, he may, in addition to the punishment provided for the crime, be punished also as provided by this subchapter.
In Commonwealth v. Simpson, 302 Pa.Super. 287, 293, 448 A.2d 640, 643 (1982) (citations omitted), we stated "[a] defendant may not be convicted under § 6103, for that provision merely provides that a violation under Sub-Chapter 61 of the Crimes Code does not merge with a crime of violence for purposes of sentencing; it does not create a separate offense." Accordingly, the judgment of sentence imposed for violating 18 Pa.C.S.A. § 6103 is reversed. [9]
Even if the evidence is sufficient, appellant further argues that the Commonwealth failed to prove his sanity beyond a reasonable doubt. The threshold question is whether sanity was ever properly presented by appellant so as to trigger the Commonwealth's burden of proof. See Commonwealth v. Tempest, 496 Pa. 436, 440, 437 A.2d 952, 954 (1981); Commonwealth v. Demmitt, 456 Pa. 475, 483, 321 A.2d 627, 632 (1974).
As we have said, appellant's defense was one of alibi, i.e., that he was asleep at home on the morning of these crimes. The defense of insanity was raised by appellant only to the extent that he testified that he had been hospitalized for auditory and visual hallucinations one month earlier, and again, two months later. Although he stated that during September, 1979, he was hearing voices "off and on," he did not remember whether he did so on September 29. He testified that he did not see the devil on that date. The sole other evidence presented in support of an insanity defense was the testimony of Dr. Podolsky. Dr. Podolsky was unable to form any opinion as to whether appellant was criminally responsible at the time of this incident.
It is obvious that the defenses of alibi and insanity are completely incompatible: one cannot, on the one hand, state that he was not at the crime scene at all and then, on the other hand contend that if he was there, he was "labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it that he did not know what he was doing was wrong." Commonwealth v. Woodhouse, 401 Pa. 242, 250, 164 A.2d 98, 103 (1960) (footnote...
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