Commonwealth v. Rose, Appellant.
Supreme Court of Pennsylvania
July 1, 1974
reargument refused July 31, 1974.
457 Pa. 380 | 321 A.2d 880
Equally untenable is any suggestion that the denial of the right of counsel and the deprivation of the Fifth Amendment privileges were in this instance harmless error beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967). As a result of the presentment offered by this grand jury the indicting grand jury returned one hundred and fifty-six (156) indictments against the corporate and individual appellees. This grand jury stated their reason for recommending indictments as being those instances where there was an absence of “any explanation which credibly indicates that such actions resulted from inadvertence or negligence.” To conclude in this context that the appellees’ responses to the questions propounded were exculpatory and thus not incriminating would be completely unrealistic. Indictments must be quashed where they are based in any way upon a defendant‘s testimony given in violation of his right against self-inсrimination. Commonwealth v. Cohen, 221 Pa. Superior Ct. 244, 289 A.2d 96 (1972).
I would affirm the orders of the Superior Court and the court below quashing these indictments.
Stephen B. Harris, First Assistant District Attorney, with him Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE POMEROY, July 1, 1974:
The appellant, Amos Paul Rose, was convicted by a jury in Bucks County of murder in the first degree of one Gary Moore on November 26, 1970. On this direct appeal from the judgment of sentence of life imprisonment, appellant‘s sole contention is that the trial court erred in that portion of its charge which placed on the defendant the burden of proving intoxication by a preponderance of the evidence. We agree with this position, and therefore will reverse the judgment of sentence and remand for a new trial.
At trial, the Commonwealth sought a first degree murder conviction, contending that the element of specific intent was supplied by the inference to be drawn from the intentional use of a deadly weapon on a vital part of another human being. Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972); Commonwealth v. Hornberger, 441 Pa. 57, 61, 270 A.2d 195, 197 (1970). Appellant did not deny having shot the deceased following an altercation, but sought to avoid a first degree conviction by showing that he was so intoxicated at the time of the shooting as to prevent his forming the specific intent to take life. Commonwealth v. Duncan, 437 Pa. 319, 263 A.2d 345 (1970); Commonwealth v. Barnosky, 436 Pa. 59, 258 A.2d 512 (1969); Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968); Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317 (1947); Commonwealth v. Kline, 341 Pa. 238, 19 A.2d 59 (1941). To that end evidence was introduced that on the day in question (Thanksgiving Day, 1970), appellant began drinking early in the morning and by the time of the fatal incident was indeed intoxicated. The Commonwealth called its own witnesses who testified that in their opinion appellant was not in an inebriated condition. In addition, the prosecution introduced the chemical analysis of a blood sample taken from appellant indicating thаt at the time of the shooting his blood alcohol content by weight was .24%. The toxicologist who performed the test, however, stated that this percentage was inconclusive as to whether or not appellant could have formed the necessary intent for first degree murder.1
In its charge to the jury, the trial court gave a full and careful instruction on the subject of intoxication as a defense to murder. With respect to the burden of proof to establish that defense the court said: “Where, however, the charge is felonious homicide, intoxication which would be so great as to make the accused incapable of forming a willful and premeditated design to kill, or incapable of judging his acts and their consequences, might serve to reduce the crime of murder from
Appellant concedes, as he must, that the above instruction comports with past pronouncements of this Court,2 as well as those in a number of other jurisdictions.3 He contends, however, that the decision of the Supreme Court of the United States in Re Winship, 397 U.S. 358, 25 L.Ed.2d 368 (1970) dictates that placing any burden on the defendant to prove intoxication of-
As noted above, Pennsylvania defendants have traditionally had the burden of proving by a preponderance of the evidence the facts relating to an affirmative defense which they wish to assert. Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970); Commonwealth v. Iacobino, 319 Pa. 65, 178 Atl. 823 (1935); Commonwealth v. Stein, 305 Pa. 567, 158 Atl. 563 (1932); Commonwealth v. Troy, 274 Pa. 265, 270, 271, 118 Atl. 252 (1922); Commonwealth v. Morrison, 266 Pa. 223, 109 Atl. 878 (1920). A major exception to this general rule was created in Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959). In that case, we held that where the defense was alibi, which traditionally had been classified as an affirmative defense in Pennsylvania, the Commonwealth must yet prove beyond a reasonable doubt the defendant‘s presence at the scene of the crime at the time it was committed. The Court reasoned as follows: “It is because of [the] nеver-shifting burden upon the Commonwealth to prove every essential element of the charge it makes against the defendant that it cannot logically be said that the Commonwealth has the burden to prove the presence of such element while the defendant, at the same time,
The Bonomo decision understandably raised questions as to the burden of proof required with reference to the defenses of intoxication, insanity and self-defense7 When faced with a challenge to the requirement that the defendant prove self-defense by a preponderance of the evidence, however, this Court in Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970), distinguished alibi from what it characterized as “true” affirmative defenses, i.e., those where the defendant admits his commission of the act charged, but seeks to justify or excuse it. In cases involving such “true” affirmative defenses, the Court in Winebrenner adhered to the traditional requirement that the defendant prove them by a preponderance of the evidence. Later that same year, in Commonwealth v. Vogel, 440 Pa. 1, 268 A.2d 89 (1970), the Court was obliged to consider still another of the affirmative defenses, that of insanity. As indicated by the four separate opinions and one concurrence in the result in that case, agreement on the standard of burden of proof proved quite elusive, and
A review of leading commentators on the subject reveals almost unanimous rejection of our Winebrenner position. As noted by one respected text writer: “As to all these claims for exoneration [self-defense, duress, insanity, intoxication], their truth goes in final analysis to the guilt, to the rightness of punishing, the accused. Thus it seems inconsistent to demand as to sоme elements of guilt, such as an act of killing, that the jury be convinced beyond a reasonable doubt, and as to others, such as duress or capacity to know right from wrong, the jury may convict though they have such doubt. Accordingly, the recent trend is to treat these so-called matters of defense as situations wherein the accused will usually have the first burden of producing evidence in order that the issue be raised and submitted to the jury, but at the close of the evidence the jury must be told that if they have a reasonable doubt of the element thus raised they must acquit.”9 The American Law Institute‘s Mоdel Penal Code (Prop. Official Draft, 1962) takes a similar stance. See Sections 1.12(1), 1.13(9) (c). The drafters of the Code, in their commentary to Section 1.12,10 state that they do not favor a shifting of the burden of proof to the defendant for affirmative defenses “in the absence of
Our conclusion on the issues presented by this appеal is in accord with the trend indicated by the above authorities, and may be formulated as follows: In any criminal prosecution, the Commonwealth has an unshifting burden to prove beyond a reasonable doubt all elements of the crime. One of such elements in first degree murder is, of course, a specific intent to kill. This burden is neither increased nor diminished by an attempt by a defendant to disprove the element of intent by a showing of lack of capacity, due to intoxication, to form such an intent. Whether the Commonwealth will, in a particular case, elect to carry that burdеn without introducing evidence to negate the existence of a disabling condition of intoxication, or whether it will seek to introduce such evidence, will be for it to decide; as in every case, the risk of non-persuasion remains with the Commonwealth. Whatever the district attorney‘s decision may be in that regard, it is error for the trial judge to instruct the jury that there is a burden upon the defendant to establish his intoxication by a preponderance of the evidence. Such evidence is offered by the defense solely to cast doubt upon the existence of the specifiс intent to kill and, as with all elements of the crime, the defendant has no burden of persuasion.
We emphasize that our insistence upon the Commonwealth‘s burden to prove beyond a reasonable doubt all elements of the crime does not require it to disprove a negative. Thus, to enable a defendant to seek to negate specific intent by reliance on the fact of his intoxication, there must be evidence in the case sufficient to place in issue that fact concerning defendant‘s men-
In the case at bar, it is clear that the evidence introduced by the defense was entirely adequate to place in issue the defendant‘s mental capacity to form the requisite specific intent to kill. As the court‘s chаrge placed on the defendant the burden of persuading the jury by a preponderance of the evidence of his intoxication and consequent lack of ability to form such intent, the judgment of sentence must be reversed and the case remanded for a new trial.
It is so ordered.
CONCURRING OPINION BY MR. CHIEF JUSTICE JONES:
I agree that a departure from precedent is in order to comport the law pertaining to intoxication with that of alibi1 and therefore join in granting a new trial. I cannot agree, however, with the broad pronouncements of the plurality and concurring opinions on the burden of proof required with reference to affirmative defenses.
In a criminal prosecution, the Commonwealth has the burden of proving every essential element of a crime necessary for conviction. These elements include the occurrence of a specific type of injury charged, the requisite mens rea, and the accused‘s agency as per-
The concurring opinion of Mr. Justice ROBERTS goes even further. The result of our decision in Bonomo was to relieve the defendant from any burden of proving the defense of alibi, but we did not then, as Justice ROBERTS would today, place upon the Commonwealth the duty to disprove beyond a reasonable doubt the theory of defense. This additional burden is unnecessary to protect the rights of a defendant or to insure proоf of guilt beyond a reasonable doubt. A jury
Since the basis for establishing a new evidentiary rule is that here, as in Bonomo, it is illogical to impose contradictory burdens of proof, an examination of the burden of proof required with reference to Pennsylvania‘s other “affirmative defenses” is warranted to clarify this area of the law. The two areas in which this Court has now departed from the traditional requirement that the defendant prove a so-called affirmative defense by a preponderance of the evidence are with respect to alibi and intoxication. Both of these defenses are directed towards negativing an element of the crime which it is the Commonwealth‘s duty to prove, rather than claiming justification or excuse, and are not truly affirmative defenses.4
In Commonwealth v. Winebrennеr, 439 Pa. 73, 265 A.2d 108 (1970), this Court distinguished alibi from what is classified as “true affirmative defenses.” Although the majority in Winebrenner unfortunately included intoxication among the class of affirmative defenses, 439 Pa. at 84 n. *, 265 A.2d at 114 n. 7, the rationale of that case was well-taken.5 Among those recognized by Pennsylvania as affirmative defenses to various crimes are coercion, entrapment, insanity, and justification.6 These are defenses not because if believed they prevent the Commonwealth from meeting its burden of proof, but because public policy dictates that these are situations which the penal laws were not designed to proscribe or punish. The policy behind thesе defenses cannot be doubted. To afford the benefits of this policy to one who has otherwise been proven guilty beyond a reasonable doubt, however, it is not unreasonable nor unfair to require a defendant to prove by the weight of the evidence that he is so entitled.
CONCURRING OPINION BY MR. JUSTICE ROBERTS:
Like the majority, I am of the view that appellant is entitled to a new trial because the trial court erroneously charged the jury that appellant had the burden of proving intoxication to negatе the element of specific intent necessary to a verdict of murder in the first degree.
Further I agree that when the accused places in issue a defense to an element of the crime charged (such as, for example, intoxication or insanity) he assumes no burden of proving that defense. The Commonwealth always has the burden of proving beyond a reasonable doubt every element of the crime charged; an accused has no burden of persuasion.1
In my view, the accused has no obligation to introduce any particular evidence in support of his claimed defense. No specific quality or quantity of evidence need be produced.2 Once the particular defense to an element of the crime charged is in the case--however and by whomever raised--a defendant upon request is entitled to a charge that the jury must acquit if it has a reasonable doubt as to the challenged element of the offense. See McCormick‘s Handbook on the Law of Evidence §341, at 802 (2d ed. E. Cleary 1972).
This view is in harmony with the Model Penal Code. Model Penal Code §1.12 (Proposed Official Draft, 1962). The commentary to that section explains: “When . . . there is evidence supporting the defense (whether presented by the prosecution or defendant), the prosecution has the normal burden; the defense must be negatived by proof beyond a reasonable doubt.” Id. §1.12 (formerly §1.13), Comment at 110 (Tent. Draft No. 4, 1955). See also
Mr. Justice MANDERINO joins in this concurring opinion.
CONCURRING OPINION BY MR. JUSTICE NIX:
I concur in the result.
We have consistently held in this Commonwealth that intoxication does not provide an excuse for criminal conduct and that such еvidence is only relevant for the purpose of negating specific intent. Commonwealth v. Brabham, 433 Pa. 491, 252 A.2d 378 (1969); Commonwealth v. Reid, 432 Pa. 319, 247 A.2d 783 (1968); Kilpatrick v. Commonwealth, 31 Pa. 198 (1858). Thus it is apparent that the introduction of evidence establishing alcoholic consumption is not an admission of the crime charged and the offering of the resultant intoxicated state is not an insulation against criminal responsibility; rather the evidence is received in an effort to demonstrate the absence of an essential element of the crime--the required mental state. The enormity of the paradox created by the conflicting instructions should have been clearly perсeived under the
My pleasure with the majority‘s present realization of the former error is tempered unfortunately by its relegation of this change in the law to a mere establishment of a new evidentiary rule. While there may be some justification for the majority‘s reluctance to hold that this change is mandated by the Federal Constitution, there is no excuse for its failure to recognize the clear requirements of the Constitution of this Commonwealth. The Due Process Clause of Article I, Section 9 of the Pennsylvania Constitution must at least require that the judgment of one‘s peers be guided by some type of intelligible standard. Nothing is more basic to the adjudicatory process than the standard to be employed by the finder of fact in the determination of guilt or innocence. Where the standard employed is so completely contradictory as to render it unintelligible, the fact finder is left without guidance and due process is offended.
My views pertaining to the majority‘s comments that a certain quantum of evidence must be introduced before the defendant‘s capacity to form a specific intent is in issue have been fully set forth in my concurring opinion in Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974).
Commonwealth, Appellant, v. Cunningham.