*1 A.2d 103 Pennsylvania COMMONWEALTH of KUHN, Jr., Lloyd Appellant. David Superior Pennsylvania. Court of
Argued Feb. 1983. Filed March 1984. Appeal Petition for Allowance of Denied Oct. *3 Defender, for Woodcock, Jr., Hollidaysburg, Public
John appellant. Altoona, Caldwell, Attorney, District A. Assistant
Gary Commonwealth, appellee. MONTEMURO, SPAETH, JJ. BROSKY and Before BROSKY, Judge: imposed subse- is from sentence appeal judgment
This causing or burglary, theft to conviction for quent (1) A raises seven issues: catastrophe. Appellant a risking confession. (2) suppress Failure to Rule 1100 violation. (4) permitting Not (3) to sustain demurrer. Failure appellant’s testify regarding psychologist (5) The amount to chronic alcoholism. intoxication due (6) The ability pay. exceeding appellant’s restitution against (7) verdict was against the law. verdict (3), (5), (6) We find that issues of the evidence. weight *4 issues waived; against appellant we find on (7) are and is af- of sentence (2) (4). Accordingly, (1), judgment firmed.
Rule a discharge he is entitled to Appellant argues that Pa.R.Crim.P. 1100.1 of a violation of result due argues Attorney did establish the District Appellant also appellant came diligence were tried before that four newer cases requirement tried strict that cases be We know of no trial. Appellant was on charged January 1978. Prior to the date, run Rule 1100 the a prosecution' petition filed extend. This granted was until November 3. Trial was before that commenced date. hearing,
At the extension brought it was out that the trial could not held due to a number of factors creating judicial delay: backlog cases, a the resignation Judge of the President and construction in the courthouse. delay a Judicial constitutes valid reason a justifying Rule 1100 extension. Commonwealth v. Mayfield, 469 Pa.
Suppression Appellant contends that the court below erred in failing to suppress the statement he gave trooper a State Police morning after the commission of the crimes. He con- tends that this givеn statement was involuntarily since he was intoxicated at the time it was made. note
We outset that this issue presented fashion, to the tardy court below a day of trial. The trial court noted this lack of timeliness but nonetheless result, chose to As address issue. the issue is preserved for appellate review. Pinno,
In Commonwealth v.
433 Pa.
We that a reading compels believe of Rule 2001 question the conclusion 2001(b) that the of waiver under 2001(b) solely is matter court. four provides alternative excuses for failure to meet the days “five trial” The drafters’ requirement. *5 peri- time of the expiration the application tain the after of appel- merits decided judge When the trial od.... his discre- claim, exercised he effect suppression lant’s noncompliance with appellant’s excuse tionary power day five rule. 5-6, 248 A.2d Pinno, Pa. аt supra, v. Commonwealth presently not the one dealt Pinno rule to form us, one of the rules consolidated before but it was in- 323. The latter also present rule —Pa.R.Crim.P. interests of which phrase justice” if “the cludes is, therefore, to the in Pinno. Pinno crucial rationale us; court and thus the trial to the case before applicable tardy the decision to treat had within its discretion discretion, longer “it no suppression motion. Given waiver.” Id. makes sense to consider any his said, alleges that intoxication at As we have it the time he the statement rendered made intoxication, The effect such consequently inadmissible. established, of Pennsylvania out in a number if has set been cases. Supreme Court imbibing hangover existence of does
Recent
or the
inadmissible,
goes only
but
make his confession
it.
accorded to
weight to be
Smith,
Commonwealth
(1972).
considered,
but
Again,
is a factor
intoxication
sufficient,
render the confession
in and
itself to
involuntary.
Jones,
Pa. 423 at
Commonwealth at 125 render the confession for intoxication to
In order impact precise had a certain it must have involuntary, the individual. capacity is sufficient mental
The test is there whether saying he was and to have to know what the defendant it. say intended to voluntarily *6 Culberson, v.
Commonwealth
The
has the
proof
Commonwealth
burden of
toas
voluntariness;
it must
aby preponderance
be shown
of
credible evidence. Commonwealth ex rel. Butler v. Run
dle,
429 Pa.
(1968).
... our responsibility upon review is determine wheth er the supports record the factual findings of the court below and the legitimacy of the legal inferences and conclusions drawn from findings. . . . those In making determination, we are to consider only the evidence of prosecution’s witnesses and so much of the evi as, dence for the defense fairly read in the context of the whole, record remains uncontradicted. Goodwin,
Commonwealth v. 522-523, Pa. at A.2d 892 at 895 mind,
With these principles a review of the record reveals the following.
The State Police arrived at appellant’s house the after morning the crimes had been ex They committed. plained the of purpose their visit and read him his Miranda rights. Appellant did not stand on rights those but made a signed. statement which he later At the suppression hear ing, Trooper appellant Behe testified that said that he had been night drunk the before and feeling was not “100%.” issue, On Trooper that, the ultimate testified while appellant appeared unkempt somewhat hungover, ap pellant was not intoxicated at the time of interrogation. testimony While there was to the contrary— The trial elected to judge believe the testimony detectives’ as to the appellant’s condition and capacity at the time giving his statement and not that his appellate An court does family. weigh not or evidence witnesses, pass upon credibility and there is no court’s that the of law to hold as matter for us basis ade- the confession voluntariness of finding of discretion. the court’s and well within supported quately 461, 291 A.2d Smith, 447 Pa. supra, Commonwealth not, therefore, suppress the motion to The denial of reversible.
Demurrer erred court below claims that the Appellant risking to charge causing granting his demurrer however, not rest did the defendant catastrophe.2 “Since *7 in to in a case put elected following ruling, adverse but is no on the demurrer defense, ruling of the the correctness v. Ilgenfritz, issue.” Commonwealth longer available (1976). A.2d 466 Pa. Court of this Commonwealth Supreme
In Ilgenfritz, framed, namely, if properly question to “treat the chose3 motion refusing defendant’s erred the trial court whether сourse, so, consider In we doing judgment. in arrest of in the contained trial, that only of the evidence at all has in chief.” Id. Because case Commonwealth’s being against the the verdict regarding an issue also raised The it, framed issue.4 law, properly we can address issue conse- pleaded addressing improperly choice us. not before quently Intoxication
Involuntary allowing court erred that the trial argues Appellant He testify. was have Shapson, Dennis psychologist, at the time involuntary intoxication appellant’s testified to alleged involuntary of the crimes. of the commission 18 Pa.C.S.A. 3302. § 2. case, language Ilgenfritz, following above-quoted In a
3.
later
improperly framed issue. Common-
chose not to treat the
that Court
Sourbeer,
A letter sent to the Public Defender by Shapson, and another staff member Hospital, psychiatrist of the Altoona Goldschmidt, Pauline succinctly theory states the of invol- on untary Shapson intoxication which would have based his testimony.
Mr. L. David Kuhn seen July us 1978. Mr. Kuhn is a chronic alcoholic. estimation,
In our capable he is not of voluntarily refrain- from ing the use of alcohol.
Since an appropriate offer of proof was made and the issue preserved review, otherwise for our one only question remains for our determination. If Shapson had testified as his proof indicated, letter and the offer of would it have had legal words, relevance? In other whether, we must decide law, as a matter of involuntary intoxication can be estab- lished through the existence of a form of chronic alcoholism which renders him capable “not of voluntarily refraining from the use of alcohol.” In order make this determina- tion, look to we will purposes criminal sentencing.
Perhaps the primary purpose of criminal sentencing is punishment. One rationale underlying the affirmative de- fense of intoxication is that person a should not punished for committing be a criminal act due to a condition for which he was not responsible.6 Following rationale, punishment if were the only reason for criminal sentencing, would obliged we to find that an ungovernable compul- accuracy 5. The factual of a is such condition not before us here. For review, purpose testimony of our we must if assume that had been given the fact finder would have credited it. voluntary defense; is 6. This also the reason that intoxication a is not responsible he is for his of condition if a intoxication. Even criminal intoxication, consequence act was committed as a of if he was volun- intoxicated, tarily legally responsible he is held acts. for those of involuntary state legal drink could create sion to intoxication.7 sentencing criminal
However, of purposes are other there In is its prevention. One of these punishment. other than forms, intoxicated per- involuntarily commonly accepted a result of such crime as is not another likely son commit Thus, of criminal sen- prevention purpose intoxication. intoxi- person involuntarily to the tencing applicable is not in the usual sense. cated a intoxicated as person involuntarily of a is true
This case, likelihood In such a alcoholism. result of chronic resulting repeated commis- repeated of intoxication and Thus, contrast, crimes, is, indeed. very high in sion of preven- for purpose of liability appropriate criminal like the onе us. tion in a case before one the other be found in of distinction can also
Another For exam- sentencing: rehabilitation. of criminal purposes liability criminal logical impose not be it would ple, someone who has drunk some of rehabilitation on purposes hallucinogen him contained a unbeknownst to coffee which effects, crime. committed a and, consequence its as a The not be need rehabilitation. person would Such alcohol- of chronic involuntarily intoxicated virtue person contrast, is, in drastic need rehabilitation. again ism sentencing of criminal also purpose another Finally, appellant’s alleged condition—restitu- people applicable Indeed, portion of the sentence tion. this constituted imposed appellant. on summarize, appropriate impose it is not
To while person of sentence liability judgment criminal for the through intoxicated chronic alcoholism involuntarily Among are served. punishment, purposes other purpose interprets here as a denial that dissent our statement 7. The sentencing we perceive punishment. That is not what have would here; by using argument. gainsay the obvious would we said nor that, punishment proved, point is if the defense were However, sentencing. purposes of justifying the other be a basis for *9 present, purposes appel- are sentencing other met. Once those are sentencing quite point. appraisal of is beside the personal lant’s these proper purposes prevention, are rehabilitation and restitution. All three of purposes the latter are by served of sentence in the judgment case before us.8 conclude, therefore,
We that intoxi cannot, law, cation as a matter of be through established evidence that showing the criminal defendant was a chronic incapable alcoholic from voluntarily refraining ingestion of alcohol. It follows from this which evidence Shapson given legal would not have have had rele vance as an Consequently, affirmative defense. there was in the no error trial court not him allowing to testify.
Restitution
Among the requirements
of appellant’s 15-year
probation imposed
sentencing
pay
was that he
á monthly
minimum of
in costs and fines. This sum
$200
be
to the
forwarded
owner of the burned-down funeral home.9
argues
Appellant
that this amount
his
exceeds
ability
pay
of Commonwealth
improper
therefore
under
rule
Fuqua,
Pa.Super.
83 as no for our review preserved not been issue has This the court was filed with modify to sentence motion written in with Pa.R.Crim.P. 1410.10 accordance below
Another term the at sentenc probation imposed of ing that: “... the defendant on a weekly was shall attend the services at the Baptist basis Church Emmanuel Church or such other defendant’s Claysburg Church of the choosing as he determine.” At Court may sentencing the “The to attempting any stated: Court not into put anyone nature, of this I’m particular anything trying Church the keep you light you within have seen. That’s the reason imposed I of ser special have condition some Church your choosing.” vice of not has been of the sentence portion of this propriety
The illegal Nor does constitute appeal. us on presented can term such that we sense of that in the narrow sentence Thomas, 291 Pa.Su- v. Commonwealth sponte. raise it sua Nonetheless, choose to (1981). we 901 435 A.2d per. below. Such cautionary note to courts comment11 of as a violation unconstitutional likely is most requirement the of the First Amendment Clause the Establishment effective- possible United States. of the Constitution its nonrestriction requirement probation ness of not alter this conclusion. church do any particular law against Verdict against weight the evidence against argues the verdict was Appellant These issues weight of the evidence. against law and matter, (or for that preserved appellate are also review. post-trial) mo- post-verdict included these issues were
While
As a
brief.
tions, they
argued
post-verdict
were
appellate
purposes
are waived for
consequence, they
Appellant was
after
in effect. The sen-
sentenced
Rule
tencing
properly explained appellant’s rights
him at
court also
removing any
sentencing;
valid excuse for this failure. Com-
thus
Dozier,
Pa.Super.
Judgment of sentence affirmed. J.,
MONTEMURO, concurring opinion. files a SPAETH, J., a dissenting opinion. files *11 MONTEMURO,Judge, concurring: I disagree with both the majority’s the dissent’s analysis intoxication, so, of of the issue involuntary I too although would affirm the trial court’s of judgment sentence, I feel to on my constrained state view this issue. In reaching respective conclusions, their both the majority
and the premise dissent their of the issue the analyses purposes punishment. of criminal The of decision the Unit- Supreme Texas, ed States Court in Powell v. U.S. (1968),
88 S.Ct. concep- L.Ed.2d 1254 serves as the tual forerunner opinions, although of both it is expressly view, cited in In only the dissent. the my attempt directly relate the issue of chronic alcoholism as a basis for the of involuntary defense intoxication to the of purpose punishment analytical Rather, criminal is an non-sequitur. the issue hеrein primarily evidentiary question is of the appellant’s alleged whether chronic alcoholism was rele- to a necessity vant defense of intoxication. Of the inquiry upon must touch effect of chronic alcohol- ism on criminal The the culpability. question of propriety punishing of a chronic alcoholic for crimes committed while intoxicated, by a raised the question party never either in us, trial court or before is subordinate to the first two Thus, do that questions. I not believe the issue of the propriety punishing of chronic alcoholics is properly before by appellant 1. The as the "Did issue stated is: the court err in not present testimony permitting Shap- the defense of Mr. Dennis Shapson Psychologist Hospital a at the son?" Mr. is Staff Altoona Community Mental Health Center. defense made an offer of proof testify Shapson Mr. that the is a that chronic refraining (N.T. incapable alcoholiс from the use of of alcohol. 194-6). October 1978 at by the supported I that this view is us. further believe Texas, id, question In Powell v. language of Powell. of chronic punishment whether before the court was constituted intoxication public alcoholic for the crime Eighth in violation of the punishment cruel and unusual In plurali- the United States Constitution. Amendment to Powell, However, held it did not. ty opinion, the Court in terms, applicable type situation by its own Fortas, J. dissenting opinion (joined In this case. Stewart, JJ.), it is stated:
Douglas, Brennan and right question as to any not raise This case does are intoxicated those who police and detain stop otherwise; or the disease as result of public, whether chronic alcoholics for to commit power to the State’s of an responsibility it concern the treatment. Nor does here the mere We deal alcoholic criminal acts. public.2 (Emphasis being intoxicated condition of original) findings such as those which are decisive It foreseeable *12 public namely appellant’s being in intoxicated a that the here — part compulsion symptomat pattern his disease due to of the of be made in the case of offenses of or would ic that disease —could theft, intoxicated, assault, robbery. or driving a while such as car typical do require independent acts or conduct and
Such offenses syndrome of part of the disease ly are not of the flow from and criminal If an should be convicted for alcoholic chronic alcoholism. involuntary part of the is conduct which characteristic him, nothing prevent as it herein pattern of disease afflicts the punishment. his Id, 559, 88 applicabili- 392 U.S. at S.Ct. at 2167. limited in is even more ty strongly of the decision Powell stated id, 534-35, 392 at 88 S.Ct. at plurality opinion, the U.S. 2155-56. of of the position propriety that the issue my
I reiterate it has is not us because аlcoholics before punishing chronic us, If before by the the issue were parties. raised not been decision of the Powell inapplicability I the would stress question therein. The true express language the based excluding court erred is whether the trial before us alcoholism, chronic appellant’s regarding testimony 86
which was offered to establish a of defense intoxication. I would no find error.
isIt well-established questions concerning that the admis- sion or exclusion evidence are within the sound discretion trial court and will not appeal be reversed on absent a clear abuse of discretion. v. 498 Cargo, Commonwealth 5, 444 (1982); Scott, Pa. A.2d 639 Commonwealth v. 469 258, (1976); Pa. 365 140 Miller, A.2d Commonwealth v. 303 Pa.Super. 504, 450 40 (1982); A.2d Commonwealth v. Pa.Super. 488, (1981). 283 424 Krajci, A.2d 914 The trial court found that offered testimony ques- “went to voluntary tion of intoxication which is not a valid defense under law this Commonwealth. 18 Sec. Pa.C.S.A. (Lower 6). 308.” Opinion Court Our determination then is the trial whеther court abused its in finding discretion the proffered evidence was not relevant to issue of involuntary intoxication.
“Evidence tends which to establish a material fact or case which tends to make a fact issue more less probable Brown, is relevant.” v. 489 Commonwealth Pa. 285, 303, 70, (1980); 414 Scott, A.2d 79 Commonwealth 79, (1978); Pa. A.2d Commonwealth v. 439 Pa. A.2d Myers, Involuntary intoxication as defense to a by crime addressed § 308, which Pa.C.S.A. states: voluntary intoxication voluntary drugged
Neither nor condition is a defense to a charge, may criminal nor of such conditions be negative evidence introduced to offense, intent (negate) except the element of of the such drugged the evidence of intoxication or condition may the defendant be offered the defendant whenever to reduce murder a higher degree relevant from to a *13 degree lower murder. similarity
The historical note to this section cited its
to
§
2.08
the Model Penal Code. The section
only
аddresses
intoxication,
voluntary
thus
implied
involuntary
crime,
intoxication would be a defense to
that a
a
and
to
permitted
defendant would be
introduce
rele-
evidence
has
Pennsylvania
intoxication. No
case
involuntary
vant to
a
involuntary
intoxication is
ever held that
defense
Todaro,
Pa.Super.
viable one. Cf. Commonwealth v.
(defendant
(1982)
an instruc-
The defense of ine impaired intoxication considerations: ling policy his and therefore regulate behavior ability briate’s sober, than acted while culpable made him less one who freely he had blameworthy because but inebriate reducing ability his impairment, thereby assumed the by risks against himself and others created protect intoxication defense “involuntary” his conduct. . . . consumed an on the that one who assumption was based his full awareness against intoxicant will without blameworthy. of his conduct was not implications Crime, Note, Alcoholism as a Chronic Defense (1977). Thus, in the case of the 902-05 Minn.L.R. rea, hence, no there is no mens involuntary inebriate whereas, of the voluntary in the case culpability; criminal intent inebriate, generаl deemed to able to form a he is Thus, act, intent. specific but not a to commit a criminal provide intoxication will many jurisdictions, voluntary intent, but require specific to all crimes which defense fact, In general require those crimes which intent. § former under
approach Pennsylvania was taken *14 88 § 6, 1972, 1482, 1, Act of P.L. 334,
See December No. 18 § 308; 118, Graves, P.S. Commonwealth v. 461 Pa. 334 (1975). approach, A.2d 661 This know, changed we was by the 1976 amendment which limits voluntary the effect of intoxication to negating specific intent to commit mur- § der. See 18 Pa.C.S.A. 308. As this court state din 137, 140, Pa.Super. Commonwealth v. Rumsey, (1983): A.2d § that in apparent amended 308 the legislature
[I]t
effect redefined the mens rea element of intentional or
knowing crimes to include those
putative
cases when the
offender
performed
criminal act
was
but
unable
form the criminal intent
required
otherwise
solely be
cause he
voluntarily
drunk or
Pa.
drugged. See
Supreme
Instruction,
Ct. Commission on
Jury
Standard
interpretation).
24, 1976)
Report
(April
Draft
at 2
(suggesting this
Pickett,
Pa.Superi
Commonwealth v.
Cf
.
§
(1976)(amended
or Ct.
In of the light history voluntary nature of the intoxi purpose cation defense and the of a element in mens rea crimes, we are satisfied that the has acted legislature constitutional permissible enacting within bounds § amended § voluntarily
The effect of the amendment to
308 that a
intoxicated
is deemed to have the
person
requisite mens rea
bring upon
consequences
respon-
himself the
of criminal
her
sibility,
though
even
his or
brain was little more than
performing
mush while
the criminal act.
grey
who drinks under an
person
must
We
decide whether
alcoholism is to be classified
of chronic
alleged compulsion
view,
my
inebriate.
In
chron-
as a
voluntary
the defense
establish
ic alcoholism is an insufficient basis
conclusion, I
In reaching this
*15
of
intoxication.
weight
I
of authori-
to be the
persuaded by
am
what
believe
by
consideration.
policy
in other
as well
ty
jurisdictions
convinces me
jurisdiction
the law of other
My review of
is intoxication which
com
involuntary intoxication
i.e., by physical compulsion by
force;
by external
pelled
artifice,
another,
not that
com
deception
trickery,
State,
Evans v.
645
by
compulsion.
some internal
pelled
v.
People,
Tacorante
(Alaska 1982);
155
Second Revised Criminal § 195; p. 73 A.L.R.3d 22 C.J.S. Law Criminal A.L.R.3d 1236.2 however, noted, may the chronic alcoholic be should It be raising based his condition. precluded a defense Some from insanity jurisdictions accepted of based on the a defense toxic have intensive, long-term triggered by the of psychosis be use which can Plummer, (1977), e.g., N.H. A.2d 431 State v. alcohol. See I weight authority
While also think persuasive, policy strongly preclusion considerations support chronic alcoholism as a establishing basis the defense involuntary intoxication. approach
This should be Most rejected. per- inebriated crimes, sons do not commit despite alcohol’s effect in- loosening their inhibitions. Those inebriates who do Moreover, tentionally cause harm punishment. deserve would be extraordinarily difficult to determine when alco- sufficiently holism is “chronic” or which defendant’s drunken unanticipated violence was to merit sufficiently defense. guidelines intoxication Because clear would draw, impossible jury discretion would be substan- tial. lead This could and discriminatory inconsistent results, as a as well burdensome increase in spurious claims Fi- by hoping sympathetic defendant for a jury. interest in nally, society’s safety be illserved *16 weakening against intentionally sanctions inebriates who others, cause harm to their especially since crimes often involve violent attacks on the person.
Note, 1660, Law, Alcohol Abuse and the Harvard 94 L.Rev. (1981). Additionally, 1685 I that the public’s right believe safety against rights must of the criminal balanced defendants. as Again, stated this court: by
Although overindulgence mere so or intoxication are not morally reprehensible consciously as inflicting injury another, upon legislature the may emphasize concerns culpability determining other than moral in the elements Texas, instance, of a crime. v. For Powell supra. crimes, strict upholding constitutionality liability Court Supreme legislature may U.S. noted that hardship against balance the to the offenders victims, and those impose responsibility upon with a bet- to prevent ter opportunity proscribed consequences. 134, Dotterweich, 277, United States v. 320 U.S. 64 S.Ct. Hicks, cf., and cases cited But v. therein. Commonwealth 483 Pa. However, us, (1979). 396 A.2d because this issue 1183 is not before it, suggest we do not decide nor do I what the court’s decision be. 91 hardship That victims L.Ed. Drunk or otherwise considerable well-demonstrated. nearly to commit have been shown persons intoxicated the attention of acts come to the viоlent criminal half More, and Chronic Legal Responsibility the police. (1966) Alcoholism, Am.J.Psych. Pa.Super. at Rumsey, supra,
Commonwealth that the chronic at 1124. There is no question A.2d that the hardship, propriety faces and considerable alcoholic However, in the inter- him is not clearcut. incarcerating legislative di- public safety, est of absence statute, rection, I chronic present that under the believe intoxica- equated involuntary is not to be alcoholism tion. appel- hold evidence of I would that the
Consequently, chronic excluded the trial properly by lant’s alcoholism intoxica- involuntary to the defense of court irrelevant all majority I concur in the result reached by tion. other issues.
SPAETH, dissenting: Judge, myself join my colleagues.
I find either of unable Although they express differently, themselves somewhat me respective reasoning essentially lines of seem to their that involuntary the same. Both assume intoxication will charge; some circumstances be defense to criminal involuntarily may who is intoxicated lack crimi- any for one BROSKY, J., 75; intent. nal opinion opinion by See assumption1; MONTEMURO, J., I at 84. agree with voluntary 1. There is course a distinction between *17 intoxication, voluntary regards it has been said that intoxication. As rule usual of the is that intoxication is admissible statement “[t]he ‘specific disprove is an when relevant to a intent’ which element of charged, disprove ‘general to intent’ when that is the crime but not Toll, 308, required Ann. element.” Pa.Crimes Code Model § mental 9, Comment, (1974). pp. Voluntary No. Penal Code T.D. 2-13 intoxi longer specific is no defense to intent other than cation crimes regards involuntary intoxica murder. tion, 18 308 As § Pa.C.S.A. proof involuntary will we have assumed that of intoxication negate specific See v. intent element of a crime. Commonwealth 310, 521, 533, (1983) (evi- Scarborough, Pa.Super. 460 A.2d my disagreement is with to the respect definition of circumstances in it is applicable. which
Judge recognize BROSKY would intoxication defense in as a the case of “someone who has some drunk which coffee unbeknownst to him contained a hallucinogin and, effects, as a of its consequence committed crime.” BROSKY, J., And Opinion by Judge at 81. while MON- illustration, nevertheless, TEMURO use such does not as I opinion, understand agrees Opinion his he with it. by Also, it seems fair to seq. say MONTEMURO,J., at 84 et that with Judge BROSKY and JUDGE MONTEMURO recognize involuntary intoxication as a defense in the of case someone as a of being who result forced to drink alcohol became so intoxicated as involuntarily any to. lack criminal intent. But that is as far as either will judge go; defense, neither will intoxication recognize involuntary as if even was so intoxicated lack defendant as to any intent, criminal if the involuntary intoxication occurred be- cause the could not help drinking defendant because he was a chronic alcoholic. I no my part,
For see distinction principle between three drinking these cases: unknowingly; being forced drink; person being another helpless stop to drink- I should if ing. surprised be somewhat appellant could was a prove because he chronic alcoholic he was fact However, helpless stop drinking. as BROSKY Judge that what he recognizes, prove, offered and at this we must that he stage prove assume could it.2 Accordingly, I should reverse and remand for a new trial instruc- to let him to prove tions it. try justify involuntary defense); did dence intoxication Common- Todaro, 1, 4-6, 1305, Pa.Super. (1982) v. wealth 446 A.2d 1307-8 (same). Bridge, See also 495 Pa. n. Commonwealth (Discussion (1981) availability voluntary
A.2d 154 n. 3 intentionally present intoxication a defense. "We exclude our from any induced.”). voluntarily consideration state intoxication not is an There enormous literature on the nature and causes alcohol- see, ism, Vaillant, genеrally, History G. The Natural of Alcoholism (1983) given appellant’s proof but accepted, offer of must be it; go the time is not into that should be left for trial.
93
-1-
2145, 514,
L.Ed.2d
Texas, 88 S.Ct.
In
v.
U.S.
Powell
the
rejected
Supreme
the
Court
(1968), plurality
of
clause of
punishment
the cruel
unusual
and
argument
Constitution,
States
amendment to the United
eighth
the
through the fourteenth
applicable to the states
made
amendment,
punishing
of Texas from
prohibited the State
alcoholic,
for
who claimed to
chronic
appellant,
the
that as
argument was
public
appellant’s
drunkenness. The
alcoholism,
of
incapable
of his chronic
he was
a result
drunkenness,
refraining
public
and that the cruel
from
Texas
punishment
prohibited
unusual
clause
the State of
In
from
him for
he could not control.
punishing
behavior
support of this
the
relied Robinson
argument,
appellant
660,
1417,
758,
L.Ed.2d
370 U.S.
82 S.Ct.
California,
202,
905,
denied, 371
We are to unable on the state of this record on current state of medical knowledge, that chronic general, alcoholics in and Leroy particular, Powell suffer from such an compulsion irresistible and drink get drunk in public that they utterly are unable to control their performance either or both of these acts thus cannot be at from public deterred all intoxication. . . . 585, at
Id.
Justices Black and in a separate opinion by Jus- Black, it tice made clear that their rejection appel- of the argument contingent lant’s was not on the inadequacy of approached the record. They issue much as Judge does court, stating BROSKY for this that “punishment of ... a defendant an action ‘compelled’] that was can clearly be [for deterrence, isolation, justified terms and treatment.” 540-41, Indeed, Id. at 88 S.Ct. at they 2158-59. went so far say question as to that “the whether act ‘involuntary’ an an inherently question, is ... elusive and one which the may, reasons, State for wish good regard as irrelevant.” 544, Id. at at 2160. Thus they S.Ct. foreclosed the issue of a chronic alcoholic’s criminal responsibility, which the Chief Justice and Justice had left open. Marshall
The “swing vote” was He Justice White’s. concurred in the result reached of the plurality Court ground that if the apрellant even “could not have resisted ..., becoming drunk in the nothing record indicates that he 553, could not his drinking private.” have done Id. at clear, however, in his opinion made at 2164. He it S.Ct. compul- irresistible who suffers from an a chronic alcoholic for constitutionally punished yield- be to drink cannot sion the goals regard without to whether ing compulsion, to that him. by punishing advanced sentencing might criminal be have irresistible he “If it a crime to Thus said: cannot be narcotics, v. California, to use Robinson compulsion (1962),I do not see 8 L.Ed.2d S.Ct. U.S. 758] [82 yield a crime to such constitutionally how can at 2162. compulsion.” Id. S.Ct. Fortas, dissent, Justices writing joined by
Justice Stewart, Brennan, the trial court’s Douglas, accepted from public was unable to refrain finding drunkenness, 2172, and concluded that 88 S.Ct. at id. imposition of a criminal sentence prohibited the Robinson *20 the appellant: on which, upon principle despite a subtle-
Robinson stands applied be- simply respectfully stated and ty, must be liberty and the is the foundation of individual cause it civilized state and of the relations between a cornerstone may upon not be inflicted penalties citizens: its Criminal in a he is being powerless for condition person change. 2171. 88 S.Ct. at
Id. Thus, agreed five that a alco- in Justices chronic Powell criminally punished for conduct that be- holic not be may avoid; not he could two Justices of his alcoholism cause anyway; and two Justices permit punished him be would they as would do. reserved their decision what First, course different from Powell. This case intoxicated; he being convicted was was not appellant committed that he claims to have of criminal acts convicted Second, appellant argued has not he was intoxicated. while punishment precluded clause and unusual that the cruel him; rather, argued he that has punishing court from trial he permitted prove thаt because have was he should been being intoxicated alcoholic, he not avoid so could a chronic he did the doing he when he not know what was that did in question. acts I is, therefore do not suggest that Powell any sense, But it is controlling. instructive. just For here, claims appellant to be Powell claimed alcoholic, a chronic he relied on the consequent involun- tariness of in support his intoxication of his conclusion that punished. he should not be -2-
Judge BROSKY, opinion, in his properly assumes that appellant could have he proved prove what offered to —that alcoholic, he because was a chronic he could not being avoid so intoxicated that he did not know what he doing. was BROSKY, J., n. 5. Judge BROSKY then that states not person should be punished committing “[such] criminal act due to a condition for which he (footnote Id. at 80. responsible.” omitted). This reason- ing seems to in agreement be five Justicеs Powell who not criminally punish a chronic alcoholic for conduct because his alcoholism he could avoid. But Judge goes then BROSKY off a different so, tack and holds even a chronic may alcoholic criminal, sentenced as a because “there are ... purposes of criminal sentencing other than punishment.” Id. at These he purposes, explains, prevention, are rehabilitation restitution; these, he particularly emphasizes pre- vention, safety. Id. at 82. Since these purposes public here, continues, will be he served “involuntary intoxication cannot, law, as a matter of be established through evidence *21 showing that the criminal defendant was a chronic alcoholic incapable voluntarily refraining from alco- ingestion of hol.” Id. at 82.
Judge reasoning MONTEMURO’s is similar. he Thus says inebriate, that “in case the involuntary the is there hence, rea, no mens and no criminal culpability....” MONTEMURO, J., view, at In his however, the may chronic alcoholic not be classified as at 89. While Id. inebriate. acknowledging that “the chronic alcoholic faces considerable and the hardship, that propriety cut,” is clear he incarceration not id. BROSKY, interest of concludes, that “in the Judge as does war- nevertheless be id., may public incarceration safety,” ranted. reasoning. unpersuaded by
I am is, as the so far sentence place, any In the first criminal is pain His lessened concerned, is a punishment. criminal “I’m not saying, punish- sentencing judge not all the only preventing I’m committing you prison; ing you by you get well.” again, helping from drunk you getting served says will be addition, majority In the purposes committing the alcohol- although by For will not be served. drunk, getting him from prison, prevent ic will judge in alcoholic is long so as the only will last prevention offer my colleagues I of no reason—and prison. know is released from the alcoholic suggest that when none—to rehabilitated, helped even one he prison, will have been said Judge I Fortas agree with what step way.
Powell: is of chronic alcoholics entirely jailing
It is clear that the nor therapeutic, It not defended as punishment. (or claiming therapeutic it is that any
there basis in a deterrent). caught The alcoholic offender is indeed a from on the street leading arrest “revolving door”— brief, back through unprofitable sojourn jail, over- and, jails, another arrest. The eventually, street suitable, they for which are put to use crowded inmates. upon effect alcoholic have a destructive commentators, experienced as most well Finally, “there is no probably agreement are judges, futility using penal sanctions example of the drearier than the enforcement of problem psychiatric to solve a against laws drunkenness.” (footnotes omitted). 564-65, 2170-71 88 S.Ct. at Id. at greater difficulty my col- But there is an even simply anticiрa- It is result leagues’ reasoning. the result occur. Assume that did by them will not ted by being rehabilitated the chronic alcoholic was occur—that wrong. But be might That imprisoned. useful. *22 us a suppose Let case which the evidence shows that the defendant did not know doing what he was because he drunk, was dead and that he was dead drunk because he drank a beverage that he honestly and reasonably believed to harmless be but that fact had a high alcoholic content. My colleagues a agree that such not defendant should be sentenced, criminally Judge giving BROSKY as the reason that as the incident not likely to happen again, the purposes prevention and rehabilitation not be BROSKY, J., at But 79-81. served. much more fundamental reason such a defendant should be sentenced is that he has done nothing A wrong. prison is heal, institution to educate or to like a or hospital. school do least, We not—at we should not—сommit to people prison “for their own good.” But that my is what col- leagues say may appellant. done with I am no by means unmindful of public considerations of I safety. quite agree that our “legal system respond to effectively” ac- [must] tions committed BROSKY, J., chronic alcoholics. at 82 mistake, n. 8. But is a I suggest, only to assume that the response effective is resort to the criminal law.
For I my part, is, see no distinction in principle —that matter of law—between the case of someone who became involuntarily intoxicated because he did not know what he drinking, was and someone who became intoxi involuntarily because, cated while he did know drinking, what he was he not help drinking could it because he was a chronic alcohol course, ic. Of there may be a distinction aas matter of fact: chronic alcoholic may prove be able to that he as powerless was as he he claims was. That happened in
Powell. But that is not the issue here. The issue here is whether he should be permitted try prove it. In Powell, permit Here, the trial did him judge try. permit
trial
did not
him
judge
try,
and I
believe
agree
error. For I
Powell,
the five Justices in
that the
“cornerstone of the
relations between
civilized
state
its citizens” is
principle
penalties
may
“[c]riminal
*23
ishe
being
in a condition
upon person
inflicted
not be
567,
2171.
88 S.Ct.
change.”
Id. at
powerless
the case
and
vacated
should be
of sentence
judgment
opinion.
trial
for a new
consistent
remanded
Filed March 1984.
Reargument Denied June before notes explicitly these, state if last “the interests of justice it,” require court gives discretionary enter- power to chronological propose Nor we order. do establish such unwork- requirement. able