Com. v. Terry

Decision Date17 February 1987
Citation521 A.2d 398,513 Pa. 381
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Benjamin TERRY, Appellant.
CourtPennsylvania Supreme Court

Thomas E. Waters, Jr., Dist. Atty., Ronald T. Williamson, Sp. Asst. Dist. Atty., for appellee.




For the second time, 1 Benjamin Terry appeals as of right directly from Montgomery County Common Pleas a jury-imposed sentence of death 2 along with convictions of assault by a life prisoner, 3 aggravated assault, 4 and recklessly endangering another person. 5

Appellant asks us to consider an unforeseen and unfortunate apparent conflict between a recent double jeopardy decision of this Court in homicide cases generally, Commonwealth v. Beck, 502 Pa. 78, 464 A.2d 316 (1983), 6 and a decision of the United States Supreme Court requiring the presentation of lesser included homicides reasonably implicated by the evidence to juries in capital cases. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). This conflict poses the key issue in the present case.

Relying on our holding in Commonwealth v. Beck, supra, the trial judge granted the Commonwealth's motion in limine and refused to instruct the jury that it could find appellant guilty of third degree murder or voluntary manslaughter as well as first degree murder. The trial judge felt this refusal was dictated by the Commonwealth v. Beck majority's holding that a superfluous jury verdict of not guilty of lesser included homicides, accompanying a guilty verdict on murder precludes re-trial on the lesser included homicides if the murder conviction is vacated. The Beck majority relied on double jeopardy and the statute set out at 18 Pa.C.S. § 109 7. It also held these rights non-waivable. In this case, the jury at appellant's first trial returned just such a verdict. 8 Thus, under the rationale of Commonwealth v. Beck, appellant was acquitted of all homicide charges except first degree murder.

Appellant now argues that Beck v. Alabama, supra, gives him a constitutional right to instructions on the lesser included homicides in this capital case.

On this particular record we reject appellant's argument. Beck v. Alabama, supra, requires an instruction on the lesser included homicides only when the evidence permits a rational jury to determine they were the offenses committed. Here, appellant did not meet his burden of producing evidence which, under the substantive law of Pennsylvania, would require the court to instruct on either (a) the Commonwealth's duty to persuade the jury that appellant's capacity to reason was not so affected by mental illness that he could not premeditate or (b) voluntary manslaughter under 18 Pa.C.S. § 2503(b) arising out of a sincere but unreasonable belief in the necessity of self-defense.

We recognize that diminished capacity, if established, would negate premeditation and reduce the crime to third degree murder. Commonwealth v. Zettlemoyer 500 Pa. 16, 454 A.2d 937 (1982); Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). Appellant's experts testified, in the air so to speak, about a delusion of cruel experimentation on appellant's injured legs and speculated about the effect of the prescribed drugs he was taking. They did not precisely relate either of these or the other general psychological and physiological conditions they discussed to appellant's planned and brutal act of beating the victim to death. Their testimony, couched in terms of possibilities, was incompetent under well recognized case law concerning medico-legal causation. 9

In addition, our death penalty statute, unlike Alabama's, requires the same jury which declared a defendant guilty of a capital offense to consciously choose the death sentence after considering and weighing all aggravating and mitigating factors. Finally, any error in not giving the requested instructions at the guilt phase was harmless beyond a reasonable doubt. In sentencing, the jury had before it all the evidence of diminished capacity which appellant could have properly offered to reduce the degree of this homicide and was instructed on the propriety of mitigating appellant's punishment if it believed his evidence of diminished capacity. It, nevertheless, chose death over life. We therefore affirm the conviction and the death sentence imposed. 10

In March, 1979, appellant was serving a life sentence for arson and murder in Graterford State Prison. During an exercise period in the prison's courtyard on March 29, he hid a baseball bat in his trouser leg. As appellant returned to Block C, Captain Felix Mokychic, a prison guard, was checking the prisoners' passes at the entrance. Appellant removed the bat and attacked the guard when his back was turned. He clubbed the victim's head repeatedly; Mokychic died as a result. Appellant was immediately taken into custody. He later admitted to the state police that he hid the bat in his pants and began looking for someone to kill. He chose Captain Mokychic with whom he had a prior conflict. Appellant believed that this would enhance his standing among the prisoners.

I. Failure to Instruct Jury on Lesser Included Offenses

Beck v. Alabama dealt with an Alabama statute which defined capital murder as "[r]obbery or attempts thereof when the victim is intentionally killed by the defendant." 11 If convicted, the death penalty was mandatory, and the jury was statutorily precluded from considering lesser included offenses. 12 Only two options were open to the jury, convict the defendant and impose the mandatory death sentence or acquit him entirely. If the defendant was convicted, the trial judge was required to hold a hearing and receive evidence of aggravating and mitigating circumstances. After that hearing, the judge had power to vacate the death penalty and instead sentence the defendant to life imprisonment without parole.

Consistent with its other Eighth Amendment death penalty cases, the United States Supreme Court in Beck v. Alabama, supra, held that this all or nothing approach introduced an unacceptable risk that the jury would return an unreliable verdict of guilt. 447 U.S. at 637, 100 S.Ct. at 2389. The Court observed that if the evidence showed the defendant guilty of some lesser offense, but not capital murder, the jury might choose to convict him of the capital offense rather than let him escape scot free. Id. at 642-43, 100 S.Ct. at 2392. The United States Supreme Court held that this element of unreliability in the guilt determination of a capital case so increased the risk of unwarranted imposition of the death penalty that the Alabama statute was unconstitutional. 13 Id. at 643, 100 S.Ct. at 2392.

On this record, however, we do not find that the death sentence imposed on appellant violates Beck v. Alabama. The evidence presented by appellant to show "diminished capacity" was insufficient to meet his burden of production and implicate the issue. This is so because the evidence was either irrelevant under Pennsylvania substantive law or failed to establish legal cause. Thus, no charge on the lesser included offenses was warranted by the evidence. A review of the development of our law relating to the admission of expert psychological and psychiatric testimony on the issue of a defendant's ability to form the requisite mens rea is necessary to understand these deficiencies.

Prior to the decision of this Court in Walzack, supra, Pennsylvania had precluded the use of expert psychiatric testimony on the issue of a criminal defendant's mens rea. E.g., Commonwealth v. Tomlinson, 446 Pa. 241, 284 A.2d 687 (1971); Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966). Walzack held that expert evidence which is relevant to a defendant's mens rea is admissible in Pennsylvania. 468 Pa. at 218-20, 360 A.2d 918-19. We held its admission is required if the defendant is not to be deprived of relevant evidence on a constituent element of the crime of murder. Id. at 223, 360 A.2d at 920-21. As shown subsequently by Weinstein and Zettlemoyer, Walzack did not make all expert psychiatric testimony on the issues of sanity, malice, specific and general intent admissible or relevant. Zettlemoyer, supra 500 Pa. at 28, 454 A.2d at 943; Weinstein, supra 499 Pa. at 112-13, 451 A.2d at 1347. Such testimony must be definite and specific and address a recognized defense under Pennsylvania substantive law. Nor did these cases change the rule that expert testimony offered to prove a medico-legal fact, such as causation, is incompetent and inadmissible unless it speaks to more than a mere possibility.

We have held that expert psychiatric testimony is relevant and admissible to show a defendant's inability to premeditate. This so-called "diminished capacity" defense is available in Pennsylvania only on murder charges. Commonwealth v. Garcia, 505 Pa. 304, 311, 479 A.2d 473, 477 (1984); Commonwealth v. Walzack, supra 468 Pa. at 214, 360 A.2d at 916. It is a limited one. Commonwealth v. Weinstein, supra; Commonwealth v. Zettlemoyer, supra. As we stated in Weinstein:

[P]sychiatric testimony relevant to the cognitive functions of deliberation and premeditation is competent on the issue of specific intent to kill. Thus psychiatric testimony is competent in Pennsylvania on the issue of specific intent to kill if it speaks to mental disorders affecting the cognitive functions necessary to formulate a specific intent. Where, as here, it does not, it is irrelevant and hence inadmissible.

499 Pa. at 114, 451 A.2d at 1347. Such evidence is irrelevant in Pennsylvania because our substantive law does not recognize the so-called "diminished capacity" defense to first degree murder unless the mental illness involved affects...

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