Com. v. Weinstein

Decision Date26 January 1971
Citation442 Pa. 70,274 A.2d 182
PartiesCOMMONWEALTH of Pennsylvania. v. Stephen Z. WEINSTEIN, Appellant.
CourtPennsylvania Supreme Court

Raymond J. Bradley, Louis Lipschitz, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., James D. Crawford, Asst. Dist. Atty., Chief, Appeals Division, Philadelphia, Carl B. Feldbaum, Asst. Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.




The Court being equally divided, the Judgment of Sentence is affirmed.

BELL, C.J., files an Opinion in Support of the Affirmance of the Judgment of Sentence.

EAGEN and O'BRIEN, JJ., concur in the result.

ROBERTS, J., files an Opinion in Support of Reversal of Judgment in which JONES and POMEROY, JJ., join.

COHEN, J., took no part in the decision of this case.


ROBERTS, Justice.

An evenly divided Court today holds that a defendant who concedes his 'sanity' under the M'Naghten rule may not introduce psychiatric evidence tending to prove that he was incapable of acting with the deliberateness and premeditation required for guilt of murder in the first degree. This ruling is unsupportable.

This issue is no stranger to us. In Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 (1967), and in Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966), this Court affirmed the exclusion of medical evidence similar to that rejected by the trial court here. And the last time we faced the issue, this Court was also evenly divided. Commonwealth v. Rightnour, 435 Pa. 104, 253 A.2d 644 (1969). Although I have previously set forth my views on this issue in my dissenting opinions in these cases, I am compelled to reiterate them here.

It should be noted initially that the opinion in support of the affirmance of the judgment of sentence can draw little support from the principle of stare decisis. This is not a situation where 'it is more important that the applicable rule of law be settled than that it be settled right.' Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting). 'Stare decisis is a principle of adherence, for the sake of certainty and stability, to precedents once established. But is applies primarily to decisions, * * *, which invite reliance and on the basis of which men order their affairs, e.g., in the field of contract or property rights.' Smith v. Brennan, 31 N.J. 353, 361, 157 A.2d 497, 501 (1960). See also Greene v. Rothschild, 68 Wash.2d 1, 8, 414 P.2d 1013, 1015 (1966); Falzone v. Busch, 45 N.J. 559, 214 A.2d 12 (1965). There is certainly no such reliance involved here. Furthermore, 'stare decisis should not govern in a case like this where a man's life is involved.' United States ex rel. Fong Foo v. Shaughnessy, 234 F.2d 715, 718 (2d Cir. 1955).

It should also be noted preliminarily that today's decision aligns this Commonwealth against the trend of modern authority and the conclusions of many thoughtful commentators. The Supreme Courts of California and New Jersey, two states which formerly followed a rule similar to that which we announced in our Ahern decision, have subsequently unanimously repudiated their old law and now allowed the admission of evidence of 'diminished responsibility.' See State v. DiPaolo, 34 N.J. 279, 168 A.2d 401 (1961); People v. Wells, 33 Cal.2d 330, 202 P.2d 53 (1949) (dissents on other grounds), followed in People v. Henderson, 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677 (1963), and People v. Gorshen, 51 Cal.2d 716, 336 P.2d 492 (1959). Cf. Stewart v. United States, 94 U.S.App.D.C. 293, 214 F.2d 879 (1954). Diminished responsibility is now cognizable in English homicide cases. English Homicide Act, 1957, 5 & 6 Eliz. II, c. 11, § 2(1); see Regina v. Dunbar, 41 Crim.App.R. 182 (1957). And Irish legal thought reveals a similar trend. See, O'Doherty, Criminals, Men, and Responsibility. See also A.L.I. Model Penal Code, § 4.02(1) (Proposed Official Draft, 1962). The only other near-contemporary decision to the contrary, Fisher v. United States, 80 U.S.App.D.C. 96, 149 F.2d 28 (1945), aff'd on other grounds, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382 (1946), has met with apparently unanimous disfavor. See Keedy, A Problem of First Degree Murder: Fisher v. United States, 99 U.Pa.L.Rev. 267 (1950); Weihofen and Overholser, Mental Disorder Affecting the Degree of a Crime, 56 Yale L.J. 959 (1947); Taylor, Partial Insanity as Affecting the Degree of Crime--A Commentary on Fisher v. United States, 34 Cal.L.Rev. 625 (1946). Moreover, the Court of Appeals for the District of Columbia Circuit has subsequently implied that it would not have allowed Fisher to stand had it not replaced the M'Naghten rule with the Durham test. See Stewart v. United States, supra.

One of the hallmarks of the law of evidence is the concept of relevancy, and the excluded psychiatric testimony, according to the terms of its offer, was certainly relevant. When an accused pleads guilty to murder generally, the Commonwealth, in order to raise the offense to murder in the first degree, must establish beyond a reasonable doubt that the slaying was 'willful, deliberate and premeditated * * *.' Act of June 24, 1939, P.L. 872, as amended, 18 P.S. § 4701. 1 With the aid of Dr Moore's testimony, appellant was prepared to attempt to disprove or, at least, to create a reasonable doubt that he killed Green deliberately or with premeditation, thereby negating an essential element of the crime of first degree murder. 'If the mental state requisite to a given crime is absent, the crime has not been committed. To what cause the absence of such mental state is to be attributed would seem immaterial.' Weihofen and Overholser, supra at 962. See A.L.I. Model Penal Code, § 4.02(1), comment (Proposed Official Draft, 1962); State v. Di Paolo, supra.

The proposition that a criminal defendant has a right to present relevant and otherwise admissible evidence is fundamental. 1 Wigmore on Evidence §§ 9--10, at 289--95 (1940); McCormick, Evidence § 151, at 314 (1954). And there is no sound reason to forbid the admission of relevant psychiatric evidence that a defendant did not possess the mental state requisite for the commission of a specific crime.

There is certainly no basis upon which to hold this sort of psychiatric evidence incompetent. It is no more inherently unreliable than the myriad other species of lay and expert opinion testimony daily received in the trial courts of this Commonwealth. Although the science of the human mind is inevitably less exact than the disciplines of chemistry or physics, the work of psychiatrists is more than mere guesswork. Indeed, psychiatric testimony is routinely considered in determining whether an accused is 'insane' under the M'Naghten rule, and it is likewise admissible to assist in fixing sentence. Commonwealth v. Elliott, 371 Pa. 70, 89 A.2d 782 (1952). If such evidence is competent in these other contexts, it should be deemed equally competent here.

That such evidence must frequently be based upon the possibly self-serving statements of the defendant himself presents no serious difficulty. There is substantial evidence that 'the insane do not lie--they expose the truth with alarming candor.' Roche, Truth Telling, Psychiatric Expert Testimony and the Impeachment of Witnesses, 22 Pa.B.Q. 140, 146 (1951). The allowance of psychiatric testimony unrelated to the M'Naghten defense will not unduly shift the determination of guilt or innocence from judges and juries to scholars of the human psyche. Ultimately the final decision will be made not by the testifying psychiatric expert but by the trier of fact. Furthermore, there is a growing awareness among psychiatrists of the difficulties involved in their attempted contribution to criminal justice, and progress is being made in developing procedures by which psychiatric testimony can be even more useful to the trier of facts. See, e.g., Guttmacher, Why Psychiatrists Do Not Like to Testify in Court, 20 Bull. of the Menninger Clinic 300, 306 (1956).

Finally, the fact that this Commonwealth has adopted the M'Naghten rule does not militate in favor of today's ruling. Whether or not we continue in the future to adhere to M'Naghten, there is no incompatibility between it and the admission of psychiatric testimony on degree of guilt. These two doctrines coexist peacefully in a number of other jurisdictions, including California and New Jersey. See, e.g., People v. Henderson, supra; State v. Di Paolo, supra; Battalino v. People, 118 Colo. 587, 199 P.2d 897 (1948); State v. Gramenz, 256 Iowa 134, 126 N.W.2d 285 (1964).

Obviously, a mentally disturbed killer is no less dangerous to society because of his mental disturbance. Indeed, the danger which he poses to society might be all the greater because of his mental disease or disorder. However, to attempt to respond to this danger by excluding relevant and competent evidence that an accused is not guilty of murder in the first degree is improper, unnecessary and ineffectual. Total acquittal is not at issue here; that is governed by M'Naghten. If a shorter sentence results because of acquittal of a higher offense, the Mental Health and Retardation Act provides the Commonwealth with an ample means of effecting the continued confinement of a still dangerous individual. 2 Moreover, the unwarranted imposition of the more severe sanctions of first degree murder upon one who lacked the mental capacity to commit first degree murder might actually increase the danger to society. As most eloquently stated by Dr. Karl Menninger:

'But you may ask--the man was dangerous, immoral, ruthless, unpredictable--why Not eliminate him?

'For the reasons that * * *. Eliminating one offender who happens to get caught Weakens public security...

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