Commonwealth v. Kuhn , 327 Pa. Super. 72 ( 1984 )

BROSKY, Judge:

This appeal is from judgment of sentence imposed subsequent to conviction for burglary, theft and causing or risking a catastrophe. Appellant raises seven issues: (1) A Rule 1100 violation. (2) Failure to suppress a confession. (3) Failure to sustain a demurrer. (4) Not permitting a psychologist to testify regarding appellant’s involuntary intoxication due to chronic alcoholism. (5) The amount of restitution exceeding appellant’s ability to pay. (6) The verdict was against the law. (7) The verdict was against the weight of the evidence. We find that issues (3), (5), (6) and (7) are waived; and we find against appellant on issues (1), (2) and (4). Accordingly, judgment of sentence is affirmed.

Rule 1100

Appellant argues that he is entitled to discharge as a result of a violation of Pa.R.Crim.P. 1100.¹

Appellant was charged on January 22, 1978. Prior to the Rule 1100 run date, the prosecution' filed a petition to extend. This was granted until November 3. Trial was commenced before that date.

At the extension hearing, it was brought out that the trial could not be held due to a number of factors creating judicial delay: a backlog of cases, the resignation of the President Judge and construction in the courthouse. Judicial delay constitutes a valid reason justifying a Rule 1100 extension. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976).

Accordingly, we find that appellant does not prevail on this issue.

Suppression

Appellant contends that the court below erred in failing to suppress the statement he gave to a State Police trooper the morning after the commission of the crimes. He contends that this statement was given involuntarily since he was intoxicated at the time it was made.

We note at the outset that this issue was presented to the court below in a tardy fashion, at the day of trial. The trial court noted this lack of timeliness but nonetheless chose to address the issue. As a result, the issue is preserved for appellate review.

In Commonwealth v. Pinno, 433 Pa. 1, 248 A.2d 26 (1968), Justice Roberts considered the effect of a tardily filed suppression motion.

We believe that a proper reading of Rule 2001 compels the conclusion that the question of waiver under 2001(b) is a matter solely for the court. 2001(b) provides four alternative excuses for a failure to meet the “five days before trial” requirement. The drafters’ notes explicitly state that the last of these, if “the interests of justice require it,” gives the court discretionary power to entertain the application after the expiration of the time period.... When the trial judge decided the merits of appellant’s suppression claim, he in effect exercised his discretionary power to excuse appellant’s noncompliance with the five day rule.

Commonwealth v. Pinno, supra, 433 Pa. at 5-6, 248 A.2d at 29.

The rule dealt with in Pinno is not the one presently before us, but it was one of the rules consolidated to form the present rule — Pa.R.Crim.P. 323. The latter also includes the phrase if “the interests of justice” which was crucial to the rationale in Pinno. Pinno is, therefore, applicable to the case before us; and thus the trial court had within its discretion the decision to treat the tardy suppression motion. Given this discretion, “it no longer makes any sense to consider waiver.” Id.

As we have said, appellant alleges that his intoxication at the time he made the statement rendered it involuntary and consequently inadmissible. The effect of such intoxication, if established, has been set out in a number of Pennsylvania Supreme Court cases.

Recent imbibing or the existence of a hangover does not make his confession inadmissible, but only goes to the weight to be accorded to it.

Commonwealth v. Smith, 447 Pa. 457 at 460, 291 A.2d 103 at 104 (1972).

Again, intoxication is a factor to be considered, but it is not sufficient, in and of itself to render the confession involuntary.

Commonwealth v. Jones, 457 Pa. 423 at 432, 322 A.2d 119 at 125 (1974).

In order for the intoxication to render the confession involuntary, it must have had a certain precise impact on the individual.

The test is whether there is sufficient mental capacity for the defendant to know what he was saying and to have voluntarily intended to say it.

Commonwealth v. Culberson, 467 Pa. 424 at 428, 358 A.2d 416 at 417 (1976).

The applicable burden of proof and appellate standard of review in this matter have also been detailed by case law.

The Commonwealth has the burden of proof as to voluntariness; it must be shown by a preponderance of the credible evidence. Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).

The high court has stated that:

... our responsibility upon review is to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. . . . In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Goodwin, 460 Pa. 516 at 522-523, 333 A.2d 892 at 895 (1975).

With these principles in mind, a review of the record reveals the following.

The State Police arrived at appellant’s house the morning after the crimes had been committed. They explained the purpose of their visit and read him his Miranda rights. Appellant did not stand on those rights but made a statement which he later signed. At the suppression hearing, Trooper Behe testified that appellant said that he had been drunk the night before and was not feeling “100%.” On the ultimate issue, the Trooper testified that, while appellant appeared somewhat unkempt and hungover, appellant was not intoxicated at the time of the interrogation. While there was testimony to the contrary—

The trial judge elected to believe the detectives’ testimony as to the appellant’s condition and capacity at the time of giving his statement and not that of appellant and his family. An appellate court does not weigh evidence or pass upon the credibility of witnesses, and there is no basis for us to hold as a matter of law that the court’s finding of voluntariness of the confession was not adequately supported and well within the court’s discretion.

Commonwealth v. Smith, supra, 447 Pa. at 461, 291 A.2d at 104.

The denial of the motion to suppress is not, therefore, reversible.

Demurrer

Appellant claims that the court below erred in not granting his demurrer to the charge of causing or risking a catastrophe.² “Since however, the defendant did not rest following this adverse ruling, but elected to put in a case in defense, the correctness of the ruling on the demurrer is no longer an available issue.” Commonwealth v. Ilgenfritz, 466 Pa. 345 at 347, 353 A.2d 387 at 388 (1976).

In Ilgenfritz, the Supreme Court of this Commonwealth chose³ to “treat the question as if properly framed, namely, whether the trial court erred in refusing defendant’s motion in arrest of judgment. In doing so, of course, we consider all of the evidence at trial, not only that contained in the Commonwealth’s case in chief.” Id. Because appellant has also raised an issue regarding the verdict being against the law, we can address it, the properly framed issue.⁴ The choice of addressing the improperly pleaded issue is consequently not before us.

Involuntary Intoxication

Appellant argues that the trial court erred in not allowing a psychologist, Dennis Shapson, to testify. He was to have testified to appellant’s involuntary intoxication at the time of the commission of the crimes. The alleged involuntary intoxication did not come about in the traditional ways the law has recognized such a state: being forced to consume alcohol or drugs, or consuming them without knowledge of their intoxicating contents.

A letter sent to the Public Defender by Shapson, and another staff member of the Altoona Hospital, psychiatrist Pauline Goldschmidt, succinctly states the theory of involuntary intoxication on which Shapson would have based his testimony.

Mr. David L. Kuhn was seen by us on July 18, 1978. Mr. Kuhn is a chronic alcoholic.

In our estimation, he is not capable of voluntarily refraining from the use of alcohol.

Since an appropriate offer of proof was made and the issue otherwise preserved for our review, only one question remains for our determination. If Shapson had testified as his letter and the offer of proof indicated, would it have had legal relevance? In other words, we must decide whether, as a matter of law, involuntary intoxication can be established through the existence of a form of chronic alcoholism which renders him “not capable of voluntarily refraining from the use of alcohol.” ⁵ In order to make this determination, we will look to the purposes of criminal sentencing.

Perhaps the primary purpose of criminal sentencing is punishment. One rationale underlying the affirmative defense of involuntary intoxication is that a person should not be punished for committing a criminal act due to a condition for which he was not responsible.⁶ Following this rationale, if punishment were the only reason for criminal sentencing, we would be obliged to find that an ungovernable compulsion to drink could create the legal state of involuntary intoxication.⁷

However, there are other purposes of criminal sentencing other than punishment. One of these is prevention. In its commonly accepted forms, an involuntarily intoxicated person is not likely to commit another crime as a result of such intoxication. Thus, the prevention purpose of criminal sentencing is not applicable to the person involuntarily intoxicated in the usual sense.

This is not true of a person involuntarily intoxicated as a result of chronic alcoholism. In such a case, the likelihood of repeated intoxication and the resulting repeated commission of crimes, is, in contrast, very high indeed. Thus, criminal liability is appropriate for the purpose of prevention in a case like the one before us.

Another distinction can also be found in one of the other purposes of criminal sentencing: rehabilitation. For example, it would not be logical to impose criminal liability for purposes of rehabilitation on someone who has drunk some coffee which unbeknownst to him contained a hallucinogen and, as a consequence of its effects, committed a crime. Such a person would not be in need of rehabilitation. The person involuntarily intoxicated by virtue of chronic alcoholism is, again in contrast, in drastic need of rehabilitation.

Finally, another purpose of criminal sentencing is also applicable to people in appellant’s alleged condition — restitution. Indeed, this constituted a portion of the sentence imposed on appellant.

To summarize, while it is not appropriate to impose criminal liability and judgment of sentence on a person involuntarily intoxicated through chronic alcoholism for the purpose of punishment, other purposes are served. Among these proper purposes are prevention, rehabilitation and restitution. All three of the latter purposes are served by the judgment of sentence in the case before us.⁸

We conclude, therefore, that involuntary intoxication cannot, as a matter of law, be established through evidence showing that the criminal defendant was a chronic alcoholic incapable of voluntarily refraining from ingestion of alcohol. It follows from this that the evidence which Shapson would have given would not have had legal relevance as an affirmative defense. Consequently, there was no error in the trial court not allowing him to testify.

Restitution

Among the requirements of appellant’s 15-year probation imposed at sentencing was that he pay á monthly minimum of $200 in costs and fines. This sum was to be forwarded to the owner of the burned-down funeral home.⁹ Appellant argues that this amount exceeds his ability to pay and is therefore improper under the rule of Commonwealth v. Fuqua, 267 Pa.Super. 504, 407 A.2d 24 (1979).

This issue has not been preserved for our review as no written motion to modify sentence was filed with the court below in accordance with Pa.R.Crim.P. 1410.¹⁰

Another term of the probation imposed at sentencing was that: “... the defendant shall attend on a weekly basis the Church services at the Emmanuel Baptist Church in Claysburg or such other Church of the defendant’s choosing as he may determine.” At sentencing the Court stated: “The Court is not attempting to put anyone into any particular Church or anything of this nature, I’m trying to keep you within the light you have seen. That’s the reason I have imposed that special condition of some Church service of your choosing.”

The propriety of this portion of the sentence has not been presented to us on appeal. Nor does it constitute an illegal sentence in the narrow sense of that term such that we can raise it sua sponte. Commonwealth v. Thomas, 291 Pa.Super. 263, 435 A.2d 901 (1981). Nonetheless, we choose to comment¹¹ as a cautionary note to courts below. Such a requirement is most likely unconstitutional as a violation of the Establishment Clause of the First Amendment of the Constitution of the United States. The possible effectiveness of this probation requirement and its nonrestriction to any particular church do not alter this conclusion.

Verdict against the law and against the weight of the evidence

Appellant argues that the verdict was against the law and against the weight of the evidence. These issues are also not preserved for appellate (or for that matter, post-trial) review.

While these issues were included in the post-verdict motions, they were not argued in the post-verdict brief. As a consequence, they are waived for purposes of appellate review. Commonwealth v. Perry, 279 Pa.Super. 32 at 35-37, 420 A.2d 729 at 731 (1980) (Price, J.).

Judgment of sentence affirmed.

MONTEMURO, J., files a concurring opinion. SPAETH, J., files a dissenting opinion.

1 . Appellant also argues that the District Attorney did not establish due diligence in that four newer cases were tried before appellant came to trial. We know of no requirement that cases be tried in strict chronological order. Nor do we propose to establish such an unworkable requirement.

2 . 18 Pa.C.S.A. § 3302.

3 . In a later case, following the above-quoted language in Ilgenfritz, that Court chose not to treat the improperly framed issue. Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980).

4 . As will be seen below, that issue is properly framed only in the sense that it is the correct issue post-trial. It had its own defects.

5 . The factual accuracy of such a condition is not before us here. For purpose of our review, we must assume that if the testimony had been given the fact finder would have credited it.

6 . This is also the reason that voluntary intoxication is not a defense; he is responsible for his condition of intoxication. Even if a criminal act was committed as a consequence of intoxication, if he was voluntarily intoxicated, he is held legally responsible for those acts.

7 . The dissent interprets our statement here as a denial that appellant would perceive sentencing as punishment. That is not what we have said here; nor would we gainsay the obvious by using that argument. The point is that, if the defense were proved, punishment would not be a basis for justifying sentencing. However, the other purposes of sentencing are met. Once those other purposes are present, appellant’s personal appraisal of sentencing is quite beside the point.

8 . The dissent responds that it is wrong to impose sentence on appellant because, if his defense were proved, he would not have done anything wrong. We are not unappreciative of the weight of this response, but, ultimately, we cannot adopt the result the dissent advocates. The dissent undervalues the interests of society in protecting itself from destructive acts. In the instant case a small businessman’s establishment was burned down. A legal system which did not respond effectively to such acts would soon lose its basic validation— its acceptance by the populace.

In addition, a legal response to this situation has another purpose— as we have mentioned. While it may be that appellant won’t be rehabilitated in prison it is certain that he won’t be burning down anyone else’s business while incarcerated.

Finally, the dissent seems to overlook the difference between imposing criminal sentence on a person for a status offense, (being an alcoholic), and allowing the imposition of sentence for the commission of criminal acts by not allowing the defense of being an alcoholic.

9 . The record reveals that the owner’s insurance allowed him to recover less than a fifth of the $113,000 loss he sustained.

10 . Appellant was sentenced after Rule 1410 was in effect. The sentencing court also properly explained appellant’s rights to him at sentencing; thus removing any valid excuse for this failure. Commonwealth v. Dozier, 294 Pa.Super. 249, 439 A.2d 1185 (1982).

11 . We comment only on this matter. Such comments are not part of the holding of this opinion.