Commonwealth v. Gottschall , 273 Pa. Super. 447 ( 1979 )

HESS, Judge:

Diane Gottschall was adjudged guilty by a three judge panel of murder of the third degree, attempt to conceal the death of a bastard child and incest, allegedly involving a fourteen-year-old brother. She was sentenced to confinement on the incest charge and given suspended sentences and probation on the other charges. There are four allegations of error.

Appellant contends that the charges should be dismissed because of a violation of Pennsylvania Rule of Criminal Procedure 1100 relating to extending the 180-day rule for trial of criminal cases. Complaint was filed August 18,1975. Delay was occasioned by reason of necessity for mental examination, stüdy and report. An order granted on February 2, 1976, allowing an extension for trial until the end of March 1976 session is not questioned. Prior to the expiration of that extension appellant waived a jury trial and the trial court, after hearing, suppressed appellant’s statements. On March 30, 1976, a second extension was granted so that, the Commonwealth could appeal the unfavorable suppression order, and the extension was granted “until thirty days after Pennsylvania Supreme Court disposes of Commonwealth appeal.” The appeal was filed on March 31, 1976.

It was not until February 28, 1977, that the parties were notified that the transcript of the court reporter was lodged and on April 14, 1977 it was filed of record. Time was consumed by plea bargaining during the pendency of the appeal. Thereafter the Commonwealth decided to discontinue the appeal, and on June 1, 1977, such action was taken. On June 21, 1977, a third extension was granted to the Commonwealth and it was ordered that trial take place before the end of July 1977. On July 22, 1977, appellant filed a motion to dismiss for Rule 1100 violation. Trial was held July 25-27, 1977.

Appellant contends that the second and third extensions should not have been granted. It is alleged that the suppression rulings were correct, and that the appeal amounted to an unreasonable delay. The fact that the appeal was discontinued would appear to support that contention. The Commonwealth submits that a decision on the appeal could only be made after the record was transcribed, and that prompt action was taken once the record was available for consideration. We support the Commonwealth position. To say the least, the case on its facts was most unfortunate and unusual. The Commonwealth has the right to interlocutory appeal of an unfavorable pretrial ruling that is crucial to its case, Commonwealth v. Barnett, 471 Pa. 34, 369 A.2d 1180 (1977). The fact that it later chose to discontinue the appeal, in our opinion, does not indicate undue delay.

Although no disposition was made by the Supreme Court, discontinuance of the appeal on June 1, 1977, would apparently require trial before July 1, 1977, under the provisions of the extension. A further delay was requested and allowed because no non-jury dates were available and no visiting judges were available for the remainder of the month. Three visiting senior judges were secured and the case was tried in July. Considering all the factors along with the time lost for consideration of plea bargaining, we are satisfied that the record warrants a finding of due diligence; that the three extension orders were justified; and that the petition to dismiss the charges was properly denied. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1977).

Appellant alleges that the Commonwealth has failed to prove beyond a reasonable doubt that she was sane at the time of the alleged offenses. The defense produced a psychiatrist and corroborating testimony that appellant was schizophrenic at the time of the incident. The Commonwealth produced a psychiatrist who responded, although somewhat ambivalently, to hypothetical questions. Regardless of his testimony, there was sufficient lay testimony to find appellant legally sane in accordance with the age-old M’Naghten Rule. The trial court was satisfied that sanity had been established, but did conclude that “diminished responsibility” precluded a finding of intent necessary for murder of the first degree. We agree. Lay testimony may be sufficient to establish sanity of a defendant who has offered expert testimony to the contrary. Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974).

Complaint is made that the trial court refused a motion to quash Counts II and III, which are joined with Count I, a charge of murder, in violation of Pa.R.Crim.P. 228(a). While denying the motion, the court allowed the defense to move for a severance, which action it did not elect to take. This ruling was made to comply with 18 Pa.C.S.A. Sec. 110, which requires all charges arising out of the same criminal episode to be brought in a single proceeding. Under the circumstances, we are satisfied that the court acted justly and properly in view of presently existing confusion in the rules and statutes to which we have referred and the requirements of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973).

Finally, it is contended that the evidence does not permit a conviction of a criminal attempt to conceal the death of a bastard child. After giving birth to the child, the woman put it in a paper bag, took it outside the house to a burner barrel, obtained matches, returned to the barrel and ignited the child. Appellant’s mother observed blood, went to the barrel and found the baby inside crying. The baby was taken to a hospital and died two days later of burns. The trial court reasoned that the act of igniting the child evidenced an intent to conceal its death because the natural tendency of the act would be to reduce the body to ashes. We disagree. The facts indicate rather an intent to conceal the birth of the child. No steps were taken to insure that the baby would be completely incinerated, and the child did live for two days. The present case is quite different on its facts from the case of Commonwealth v. Hessler, 39 Pa.Super. 115 (1909), in which case the evidence was ruled sufficient to support a conviction. In Hessler defendant admitted that “she intended to carry the child away and bury it,” 39 Pa.Super. at 116.

Judgment reversed on the charge of criminal attempt to conceal the death of a bastard child and appellant discharged. As to remaining counts, judgments of sentence affirmed.

EAGEN, J., files a concurring opinion. HOFFMAN, J., files a dissenting opinion.