Commonwealth v. Byrd

• Citation: 421 Pa. 513,219 A.2d 293
• Parties: COMMONWEALTH of Pennsylvania v. Curtis BYRD, Appellant.
• Decision Date: 02 May 1966
• Court: United States State Supreme Court of Pennsylvania

219 A.2d 293

421 Pa. 513

COMMONWEALTH of Pennsylvania v. Curtis BYRD, Appellant.

Supreme Court of Pennsylvania.

May 2, 1966.

William H. Brown, III, Philadelphia, for appellant.

William J. Stevens, Asst. Dist. Atty., Philadelphia, for appellee.

Before BELL C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

BELL, Chief Justice.

On November 23, 1964, defendant Byrd was arrested and charged with the murder of two persons; he was also charged with aggravated assault and assault and battery with intent to murder a third person. On January 5, 1965, a true bill of indictment was returned by the Grand Jury on all of the charges set forth above. On September 8, 1965 defendant's petition for a psychiatric examination was granted by the Court of Quarter Sessions. Thereafter, the Commonwealth filed an application for a neuro-psychiatric examination of the defendant. On January 7, 1966, the lower Court granted the petition of the Commonwealth and order the defendant to submit to such examination subject to the important limitation that he not be compelled to answer any questions propounded to him by those making the examination. From that Order defendant took this appeal.

Defendant first strongly contends that to require him to submit to such an examination is violative of the Fifth Amendment, which ordains and protects his right against self-incrimination. This Court decided in Commonwealth v. Musto, 348 Pa 300, 35 A.2d 307, that such an examination does not violate a defendant's right against self-incrimination, provided that, as in the present Order, he is not compelled to answer any questions propounded to him. In Commonwealth v. Musto Chief Justice Horace Stern, speaking for a unanimous Court said (pages 305--307, 35 A.2d page 311):

'Realizing that an attempt would be made to prove defendant insane at the time of the murder, the district attorney obtained permission from the court to have alienists examine him in prison. His counsel found fault with this proceeding on the ground that it constituted a violation of defendant's constitutional right not to be compelled to give evidence against himself. While the exact question thus presented hs apparently not been ruled upon by either of our appellate courts, it has arisen in many other jurisdictions, and these have quite uniformly held that the constitutional immunity from self-incrimination does not apply to a compulsory examination to determine the prisoner's physical or mental condition for the purpose of testifying in regard thereto, provided, of course, that he be not compelled to answer any questions propounded to him by those making the examination. The purpose of the constitutional provision is to prohibit the compulsory oral examination of the prisoner either before or at trial,--to prevent his being required to incriminate himself by speech or the equivalent of speech. Commonwealth v. Valeroso, 273 Pa. 213, 219, 220, 116 A. 828, 830. 'The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material'. Per Mr. Justice Holmes in Holt v. United States, 218 U.S. 245, 252, 253, 31 S.Ct. 2, 6, 54 L.Ed. 1021. 'Not compulsion alone is the component idea of the privilege, but testimonial compulsion. * * * Unless some attempt is made to secure a communication, written or oral, upon which reliance is to be placed as influencing his consciousness of the facts and the operations of his mind is expressing it, the demand made upon him is not a testimonial one'. 8 Wigmore on Evidence (3d ed.) 375, sec. 2265.'

We reiterated this principle as recently as 1961. See Commonwealth v. Butler, 405 Pa. 36, pages 44--45, 173 A.2d 468, page 472, where we said:

'* * * The privilege against self-incrimination does not prohibit the introduction of evidence given by a defendant voluntarily: Commonwealth v. Bryant, 1951, 367 Pa. 135, 79 A.2d 193, certiorari denied 341 U.S. 954, 71 S.Ct. 1007, 95 L.Ed. 1376. In addition, the personal characteristics and behavior of the defendant were open and observable to these doctors during his incarceration. This is not information of a written or spoken nature which the constitutional privilege against self-incrimination is designed to protect. See 32 A.L.R.2d 430; State v. Myers, 1951, 220 S.C. 309, 67 S.E.2d 506; Hunt v. State, 1946, 248 Ala. 217, 27 So.2d 186; Ingles v. People, 1933, 92 Colo. [421 Pa. 517] 518, 22 P.2d 1109; Commonwealth v. DiStasio, 1936, 294 Mass. 273, 1 N.E.2d 189; Noelki v. State, 1938, 214 Ind. 427, 15 N.E.2d 950. In Commonwealth v. Musto, 1944, 348 Pa. 300, 35 A.2d 307, this Court held that the constitutional immunity from self-incrimination does not apply even to a compulsory examination to determine the defendant's physical or mental condition for the purpose of enabling the examiner to testify in regard thereto, provided the defendant is not Compelled to answer any questions propounded to him by the examiner. See also, Commonwealth v. Kravitz, 1960, 400 Pa. 198, 161 A.2d 861.'

Defendant urges this Court to overrule the Musto and Butler decisions; this we refuse to do. Principles of fairness and justice not only to the defendant but also to the Commonwealth, fortified by the doctrine of stare decisis, require us to adhere to the principle or rule enunciated in said cases. Accordingly the Order of the lower Court requiring defendant to submit to such neuro-psychiatric examination was proper and valid.

A more difficult question arises as to the right to appeal from this Order. Defendant admits that ordinarily no appeal would lie from an order granting a neuropsychiatric examination prior to trial, or before final judgment has been entered, since such orders are generally interlocutory and unappealable. However, he contends that while this Order is interlocutory, it is an appealable Order because it falls within the 'exceptional circumstances' doctrine enunciated in Commonwealth v. Kilgallen, 379 Pa. 315, 320, 108 A.2d 780, which permits appeals (1) in cases where basic human rights or (2) public interest of great importance are involved, or (3) to prevent a great injustice to a defendant. In the Kilgallen case, where this Court refused to quash an appeal from the grant of a rule to show cause why testimony should not be taken in support of motions to quash indictments, the Court said (page 320, 108 A.2d page 783):

'The Commonwealth contended in the Superior Court and contends here that no appeal lies...