Commonwealth v. Rose

Con curbing Opinion by

Mr. Justice Nix:

I concur in the result.

*396 I am most pleased by the majority’s recognition, although belated, that it is totally illogical to have coexisting principles, one requiring the Commonwealth to prove an element of the crime beyond a reasonable doubt and the other mandating the defense to negate that same element by a preponderance of the evidence. The most astute juror would find such an instruction incomprehensible. The confusion was compounded by the Court’s alleged clarification of the subject in Commonwealth v. Winebrenner, 439 Pa. 73 , 265 A.2d 108 (1970). In Winebrenner , the Court created a classification of “true” affirmative defenses which it was argued were in the nature of confession and avoidance. Thus it was reasoned that, since the accused admitted the crime charged, the burden could properly be placed upon him to establish the justification or excuse. Without commenting upon the merits of such a formulation in general, it should have been immediately apparent that such a rationale was hopelessly inappropriate where the challenge was intoxication.

We have consistently held in this Commonwealth that intoxication does not provide an excuse for criminal conduct and that such evidence 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 perceived under the *397 Winebrenner reasoning; unfortunately, the contrary was true. 439 Pa. at 84 n.7, 265 A.2d at 114 .

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).