Com. v. Hughes

• Decision Date: 26 July 1978
• Citation: 389 A.2d 1081,480 Pa. 311
• Parties: COMMONWEALTH of Pennsylvania v. Andrew C. HUGHES, Appellant.
• Court: Pennsylvania Supreme Court

Page 1081

389 A.2d 1081

480 Pa. 311

COMMONWEALTH of Pennsylvania v. Andrew C. HUGHES, Appellant.

Supreme Court of Pennsylvania.

Argued March 13, 1978.

Decided July 26, 1978.

[480 Pa. 312] Russell J. Heiple, Johnstown, for appellant.

D. Gerard Long, Dist. Atty., David J. Tulowitzki, Ebensburg, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

Appellant, Andrew C. Hughes, was convicted by a jury of murder of the third degree for the shooting death of Robert Stephens. Post-verdict motions were denied, and appellant was sentenced to a prison term of ten to twenty years. This direct appeal followed.

The facts are as follows. On October 10, 1975, appellant, while driving his own automobile, encountered an automobile driven by Robert Stephens, the victim, at a particularly narrow passage of Ebensburg Road in the city of Johnstown. As both cars arrived at the spot simultaneously, neither was able to pass. Following a verbal exchange, appellant backed his car into a side street and allowed Stephens to pass.

Shortly thereafter, appellant was seen in a parking lot of the Frontier Club on Ebensburg Road. As Stephens walked past appellant's car, appellant jumped out, brandishing a .45 caliber handgun. He shot the victim five times in the chest and abdomen. Stephens died two days later.

Appellant first claims that he is entitled to a new trial because the trial court improperly substituted Its trial notes for a lost portion of the transcript. The facts are as follows.

The stenographer originally assigned to this case became ill during the first day of trial. She was replaced by a second stenographer, who completed the trial. The notes from the first day of trial, which included testimony of Christine Stephens, the victim's wife, and Trooper Darryl Mayfield, a ballistics expert, were misplaced and never found.

On August 18, 1976, a hearing to supply the missing portions of the transcript was held. The trial court proposed filing Its notes of the testimony, giving both the prosecution and defense an opportunity to make changes. The court then proposed to file a certificate, summarizing each witness' testimony. Defense counsel objected generally and moved for a new trial. The court overruled the objection and denied the request for a new trial. The court then proceeded with its proposed procedure. Defense counsel offered no statement or changes to the trial court's notes.

Pennsylvania Rule of Appellate Procedure 1923 provides:

"If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal."

Appellant argues that since this rule was not followed, he is entitled to a new trial. We do not agree.

At the time of the hearing to supply the missing portions of the transcript, Pa.R.A.P. 1923 had been in effect for over six weeks. Appellant, however, never objected on the grounds that the court's proposed procedure violated the rule. Under circumstances such as these, appellant cannot now complain of the failure to follow Rule 1923. ¹ See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Appellant next complains that the trial court erred in refusing his requested point for charge relating to self-defense. Appellant requested that the court charge the jury in compliance with our decision in Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975), where we held that the burden was on the Commonwealth to prove beyond a reasonable doubt that a defendant was not acting in self-defense. While not using the specific language of Cropper, the court, at the end of its charge on self-defense, did state:

"Members of the jury, you will decide if the killing was justified in self-defense or if it was not, bearing in mind again that the Commonwealth's burden is to satisfy beyond a reasonable doubt of all the elements of the crime, or crimes, before you can find the defendant guilty. If you are satisfied beyond a reasonable doubt that the Commonwealth has proved all of these elements beyond a reasonable doubt; that the elements have been proven by the Commonwealth, then you could be satisfied or find that he did not act in self-defense."

As we stated in Commonwealth v. McComb, 462 Pa. 504, 509, 341 A.2d 496, 498 (1975):

". . . (T)he trial court is not required to accept the language of the point submitted by counsel but rather is free to select its own form of expression. The only issue is whether the area is adequately, accurately and clearly presented to the jury for their consideration."

We believe the court's charge was an adequate, accurate and clear statement of the law relating to the Commonwealth's burden of proof. See Commonwealth v. Heatherington, 477 Pa. 562, 385 A.2d 338 (1978).

Appellant next alleges that the trial court erred in sustaining the Commonwealth's objection to the opinion of a defense witness that appellant was or was not intoxicated. The witness testified that he was talking to appellant "shortly before the incident" ² in the Frontier Club. He testified that appellant's speech was "slightly slurred," that he "seemed to kinda high step" and that while talking, appellant "swayed like back and forth." The witness was then asked if he believed appellant was intoxicated. The Commonwealth's objection was immediately sustained.

While a lay-witness may be qualified to express an opinion on another's intoxication, a witness must have sufficient facts on which to base his opinion. Commonwealth v. Eyler, 217 Pa. 512, 66 A. 746 (1907). In the instant case, however, the witness was equivocal when testifying as to the underlying facts. As such, the trial court properly excluded the witness' opinion on appellant's intoxication.

Appellant next argues that the trial court erred in instructing the jury to disregard the testimony of a defense psychiatrist. We do not agree. Following examination on preliminary matters, the following exchange occurred:

"Q. (Defense counsel) Doctor, from your interview, your testing and all else, you formed an opinion as to whether or not Mr. Hughes had a mental disease or defect of the mind at the time of this incident which prevented him from knowing whether his conduct was right or wrong, or which prevented him from knowing what he was doing?

"A. (Psychiatrist) I have no definitive opinion about that. All I am trying to relate here is that it could have happened, not that I have an opinion whether it did or not."

A prosecution objection was sustained, examination of the witness was stopped, and the jury was instructed to disregard the psychiatrist's entire testimony.

In McMahon v. Young, 442 Pa. 484, 486, 276 A.2d 534, 535 (1971):

"As we said in Menarde v. Philadelphia Trans. Co., 376 Pa. 497, 103 A.2d 681 (1954), summarizing the case law on the subject: '. . . (T)he expert has to testify, not that the condition of claimant might have, or even probably did, come from the accident, but that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence (citing cases).'

"The issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a medical expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff, it must find as a fact that that condition was legally caused by the defendant's conduct. Here, the only evidence offered was that it was 'probably' caused, and that is not enough. Perhaps in the world of medicine nothing is absolutely certain. Nevertheless, doctors must make decisions in their own profession every day based on their own expert opinions. Physicians must understand that It is the intent of our law that if the plaintiff's medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment." (Emphasis added.)

As the psychiatrist was unable to give any opinion of appellant's sanity or insanity at the time of the offense, his testimony was properly stricken. Compare Commonwealth v. Hamilton, 459 Pa. 304, 329 A.2d 212 (1974).

Appellant finally contends that the court erred in refusing his requested charge on insanity. As we stated in Commonwealth v. Demmitt, 456 Pa. 475, 483, 321 A.2d 627, 632 (1974), "There must be evidence in the case from whatever source that he did not know the nature and quality of his act or that he didn't know that it was wrong." Our review of the testimony reveals that the only testimony concerning insanity was the properly stricken testimony of the defense psychiatrist; therefore, the court properly refused to charge on the issue. Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975).

Judgment of sentence affirmed.

ROBERTS, J., files a concurring opinion.

POMEROY, J., concurs in the result.

NIX, J., concurs in the result.

MANDERINO, J., files a dissenting opinion.

ROBERTS, Justice, concurring.

I agree with the majority that because appellant did not object to the trial court's procedure for reconstructing the transcript, he may not on appeal raise as error the trial court's alleged failure to comply with Pa.R.A.P. 1923. Nonetheless, I think it...