Com. v. Morley

• Citation: 442 Pa.Super. 177,658 A.2d 1357
• Parties: COMMONWEALTH of Pennsylvania v. Gaye MORLEY, Appellant.
• Decision Date: 24 May 1995
• Court: Pennsylvania Superior Court

Page 1357

658 A.2d 1357

442 Pa.Super. 177

COMMONWEALTH of Pennsylvania v. Gaye MORLEY, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 6, 1994.

Filed May 24, 1995.

James D. Crawford, Philadelphia, for appellant.

Stuart B. Suss, Asst. Dist. Atty., Frazer, for Commonwealth, appellee.

Before ROWLEY, P.J., and CAVANAUGH, WIEAND, CIRILLO, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and SAYLOR, JJ.

SAYLOR, Judge:

This is an appeal from a judgment of sentence for first degree murder entered in the Court of Common Pleas of Chester County following a degree of guilt hearing.

Appellant, Gaye Morley, entered a plea of guilty to a general charge of criminal homicide in connection with the shooting death of her boyfriend, Stephen Lauritano. At the degree of guilt hearing, Appellant asserted a diminished capacity defense, arguing that she had been in a "depersonalized state" at the time of the killing and therefore had been unable to formulate a specific intent to kill. At the conclusion of the defense's case-in-chief, defense counsel joined a prosecution request to permit the Commonwealth's psychiatric expert, Dr. Kenneth Kool, to conduct an examination of Appellant prior to his testifying. Pursuant to this agreement, the trial court entered an order appointing Dr. Kool to examine Appellant in order to permit him to express an opinion regarding Appellant's mental state at the time of the incident in which she had been charged and permitting Dr. Kool to examine the hospital records of Appellant in order to assist him in forming his opinion. The trial court also ordered that defense counsel be notified of the date and time of the examination so that they could be present. Dr. Kool examined Appellant and thereafter testified at the degree of guilt hearing as a rebuttal witness for the Commonwealth.

At the conclusion of the hearing, the trial court found Appellant guilty of first degree murder. Post-trial and supplemental post-trial motions were denied after an evidentiary hearing, and Appellant was sentenced to life imprisonment.

On appeal, Appellant contends that her right against compulsory self-incrimination was violated when she was allegedly compelled to participate in an interview with the Commonwealth's psychiatrist without being told that she had a right not to answer the psychiatrist's questions. She further contends that her statements concerning the commission of the crime which she made during the examination were admitted as evidence of her intent to kill, thereby violating her privilege against self-incrimination, and that counsel was ineffective for failing to advise her of her right to remain silent during the examination and for failing to object to the use of her statements at the degree of guilt hearing. She also contends that counsel was ineffective for failing to call character witnesses on her behalf.

In arguing that her Fifth Amendment rights were violated, Appellant relies primarily on the decision of the Pennsylvania Supreme Court in Commonwealth v. Pomponi, 447 Pa. 154, 284 A.2d 708 (1971). In Pomponi, the court reaffirmed its prior rulings that the Fifth Amendment precludes a defendant from being compelled to answer questions posed by the Commonwealth's psychiatric expert during a court-ordered psychiatric examination. Appellant also relies upon Commonwealth v. Hale, 467 Pa. 293, 356 A.2d 756 (1976), in which the Pennsylvania Supreme Court further held that a defendant has the right to be advised of his privilege against self-incrimination prior to answering any questions during a court-ordered psychiatric examination. Therefore, Appellant claims that because her statements about the shooting were obtained in violation of her Fifth Amendment rights, the use of these statements at her degree of guilt hearing constituted reversible error.

Since the Pennsylvania Supreme Court's decisions in Pomponi and Hale, however, several decisions of the United States Supreme Court have addressed the applicability of the Fifth Amendment to court-ordered psychiatric examinations and the use of the results of such examinations as evidence at trial.

First in this line of decisions is Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), which involved a criminal defendant who had neither requested a psychiatric examination nor attempted to introduce any psychiatric evidence at trial. However, a psychiatrist had examined the defendant pursuant to a court order for the purpose of determining the defendant's competency to stand trial. The Supreme Court considered the applicability of the Fifth Amendment privilege against self-incrimination, and held that "[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." Id., 451 U.S. at 468, 101 S.Ct. at 1876, 68 L.Ed.2d at 372. The Supreme Court observed, however, that the result might have differed had the defendant raised an insanity defense and thereby placed his mental status at issue. Id., 451 U.S. at 465-466, 101 S.Ct. at 1874, 68 L.Ed.2d at 370-371.

In Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the Supreme Court held that when a defendant raises an insanity defense, not only can he be compelled to submit to a psychiatric examination, but the testimony of the examining psychiatrist may also be admitted as evidence concerning the issue of insanity. The defendant in Buchanan had presented a defense of "extreme emotional disturbance" and had offered testimony concerning reports which contained evaluations of his mental condition. Distinguishing these facts from Smith, the Court noted that the defendant's psychiatric examination had been at the joint request of the Commonwealth and defense counsel, and stated that

if a defendant requests such an examination or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.

Buchanan, 483 U.S. at 422-423, 107 S.Ct. at 2917-2918, 97 L.Ed.2d at 355.

Finally, in Powell v. Texas, 492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551 (1989), the United States Supreme Court further acknowledged the necessity of providing the government with a means to rebut a mental status defense. Noting its previous decisions in Smith and Buchanan, the Court observed:

"[w]hen a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the state of the only effective means it has of controverting his proof on an issue that he has interjected into the case."

Powell, supra, 492 U.S. at 684, 109 S.Ct. at 3149, 106 L.Ed.2d at 556, quoting Estelle v. Smith, 451 U.S. at 465-466, 101 S.Ct. at 1874, 68 L.Ed.2d at 370-371.

In addition to the decisions of the United States Supreme Court, many federal court decisions have also addressed the issues of whether a defendant who has raised a mental status defense can be compelled to submit to a psychiatric examination, and whether the government may thereafter use testimony concerning the results of such an examination to rebut such a defense.

In discussing the issue of whether a defendant may be compelled to submit to a psychiatric examination, federal courts have generally reiterated the principles enunciated in Smith, Buchanan and Powell, and have further emphasized that

[i]t would be a strange situation, indeed, if, first, the government is to be compelled to afford the defense ample psychiatric service and evidence at government expense and, second, if the government is to have the burden of proof, ... and yet it is to be denied the opportunity to have its own corresponding and verifying examination, a step which is perhaps the most trustworthy means of attempting to meet that burden.

United States v. Byers, 740 F.2d 1104, 1113 (D.C.Cir.1984), quoting Pope v. United States, 372 F.2d 710, 720 (8th Cir.1967) (en banc ), vacated and remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), cert. denied, 401 U.S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232 (1971).

Thus, the Circuit Courts of Appeals are virtually unanimous in holding that, where a defendant interposes at trial the defense of insanity, his Fifth Amendment privilege against self-incrimination is not violated by a court-ordered psychiatric examination. See, McNeill v. Fulcomer, 753 F.Supp. 1294, 1298 (E.D.Pa.1990); Byers, supra, 740 F.2d at 1111.

In addition, federal courts have uniformly held that "[a]lthough the fifth amendment normally bars the government from subjecting the defendant to a psychiatric examination without warning him of his constitutional rights, that bar is waived once the defendant introduces psychiatric evidence in support of a mental defense." Hendricks v. Vasquez 974 F.2d 1099, 1108 (9th Cir.1992), citing Powell v. Texas, supra, 492 U.S. 680, 109 S.Ct. 3146. See also: Silagy v. Peters, 905 F.2d 986, 1005 (7th Cir.1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991); Granviel v. Lynaugh, 881 F.2d 185, 190 (5th Cir.1989), cert. denied, 495 U.S. 963, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990); Washington v. Murray, 952 F.2d 1472, 1480 (4th Cir.1991).

Finally, the majority of federal courts which have considered the issue of whether the government may use psychiatric testimony to rebut a defendant's mental status defense have generally followed the holding of the United States Supreme Court in Buchanan that when a defendant introduces into evidence psychiatric testimony to support a mental status defense, the state may introduce testimony of examining psychiatrists on that issue as well. McNeill, supra, 753 F.Supp. at 1298; Byers, supra, 740 F.2d at 1111. The rationale underlying this position was expressed by the Tenth Circuit in United States v. Julian, 469 F.2d...