Commonwealth v. McCusker
Commonwealth v. McCusker
Opinion of the Court
Opinion by
We must decide today whether psychiatric evidence is admissible in a murder prosecution for the limited purpose of determining whether a defendant acted in the heat of passion. We are persuaded by the almost unanimous voice of professionally recognized authorities
Our holding is but a belated recognition of the tremendous advancements made in the field of psychiatry during the last several decades: “The genius of the common law has been its responsiveness to changing times. . . . Drawing upon the past, the law must serve —and traditionally has served—-the needs of the present. In the past century, psychiatry has evolved from tentative, hesitant gropings in the dark of human ignorance to a recognized and important branch of modem medicine. The outrage of a frightened Queen has for too long caused us to forego the expert guidance that modern psychiatry is able to provide.” United States v. Freeman, 357 F. 2d 606, 624-25 (2d Cir. 1966).
Appellant James McCusker was charged with the murder of his wife and brought to trial before a jury on June 17, 1968. The jury returned a verdict of second degree murder. Appellant filed post-trial motions which were denied. A judgment of sentence of not less than ten nor more than twenty years imprisonment was imposed and appellant instituted this appeal.
The Commonwealth does not dispute the excellent quality of the evidence that appellant sought to introduce through the testimony of highly qualified professionals in the disciplines of psychology and psychiatry. Among the two psychologists and two psychiatrists were two experts who examined appellant not at his behest but rather during the performance of their normal governmental duties at the Allegheny County Behavior Clinic. That Clinic routinely examines certain categories of offenders shortly following arrest. These four potential witnesses, including the clinic professional personnel and appellant’s retained physicians, would have based their testimony on an exhaustive review of appellant’s medical records, as well as their personal examinations and observations of appellant. Their testimony would have tended to establish that appellant was impassioned at the time of the offense. This passion, they were prepared to testify, had as its origins appellant’s mental disorders as well as his recent awareness that his wife had entered into a meretricious relationship with his stepbrother and her threat to retain custody of his only child.
Any analysis of the admissibility of a particular type of evidence must start with a threshold inquiry as to its relevance and probative value. A leading commentator has suggested the following desideratum for relevancy: “[D]oes the evidence offered rendered the desired inference more probable than it would be without the evidence? . . . Relevant evidence, then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible.” McCormick, Evidence, §152 at 318-19 (1954) (emphasis in original); 1 Wigmore, Evidence §§9-10 at 289-95 ( 3rd ed. 1940).
In making the objective determination as to what constitutes sufficient provocation reliance may be placed upon the cumulative impact of a series of related events.
Having found in a given situation that an accused was confronted with sufficient provocation, the focus then shifts to defendant’s response to that provocation. The relevant inquiry is threefold: did the defendant actually act in the heat of passion when he committed the homicide; did the provocation directly lead to the slaying of the person responsible for the provocation;
Here the sole and dispositive issue in controversy at trial was appellant’s state of mind at the time of the slaying. The Commonwealth’s theory was that appellant acted with malice, while appellant sought instead to prove that he acted without malice and in the heat of passion. Surely the admission of relevant and probative psychiatric evidence would have aided the jury in resolving those conflicting claims. The admissibility of relevant psychiatric testimony on the issue of whether defendant acted in the heat of passion does not, of course, intrude upon the jury’s traditional function of determining for itself the credibility and weight which it will accord that testimony.
Our courts have admitted psychiatric evidence to determine, under the M’Naghten test, whether defendant was sane at the time of the crime.
Surely the reliance we have consistently placed upon the competence of psychiatric evidence belies any concern that it is not a sufficiently recognized and accepted medical science capable of offering quality expert guidance. The weight of authority convincingly dispels any apprehension that the state of the art of psychiatry is not sufficiently advanced to discern the veracity of a defendant’s self-serving statements. Indeed, one expert has noted: “[T]he insane do not lie—they expose the truth with alarming candor.”
It would indeed be anomalous to receive psychiatric evidence—as our courts do—to establish the complete defense of insanity but at the same time reject psychiatric evidence which seeks to establish only a partial de
This Court has for many years permitted a defendant in a criminal prosecution to introduce evidence of intoxication to negate a finding that he had a specific intent to kill.
Clearly our recognition of the value of psychiatric evidence and its admissibility in determining whether a defendant acted in the heat of passion does not suggest that the M’Naghten test for legal sanity is being altered. Quite to the contrary many jurisdictions, including New Jersey and California, have comfortably recognized the two totally separate concepts. We, too, join those jurisdictions in recognizing both concepts. See, e.g., People v. Henderson, 60 Cal. 2d 482, 35 Cal. Rptr. 77, 386 P. 2d 677 (1963); State v. Gramenz, 256 Iowa 134, 126 N.W. 2d 285 (1964); State v. Di Paolo, 34 N.J. 279, 168 A. 2d 401 (1961); Battalino v. People, 118 Colo. 587, 199 P. 2d 897 (1948).
.If the trial results in a conviction of a lesser offense and a shorter sentence, the Mental Health and Retardation Act contains adequate safeguards to allow the Commonwealth to confine a mentally disturbed individual. In short, sufficient remedial procedures are readily available which insure that the mentally ill defendant will be confined and subjected to treatment for the duration of his illness.
The judgment of sentence is reversed and a new trial is granted.
See, e.g., State v. DiPaolo, 34 N.J. 279, 168 A. 2d 401 (1961); followed in State v. Sikora, 44 N.J. 453, 210 A. 2d 193 (1965); 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); Battalino v. People, 118 Colo. 587, 199 P. 2d 897 (1948); State v. Gramenz, 256 Iowa 134, 126 N.W. 2d 285 (1964); American Bar Foundation, The Mentally Disabled and the Law (1962); A.L.I. Model Penal Code, §4.02(1) (proposed official draft (1962) ; MacDonald, Psychiatry and the Criminal (1969); Menninger, The Crime of Punishment (1968); Diamond and Louisell, The Psychiatrist as an Expert Witness: Some Ruminations and Speculations, 63 Mich. L. Rev. 1335 (1965); Katz, Law, Psychiatry, and Free Will, 22 U. Chi. L. Rev. 397 (1955); Kaplan, Punishment and Responsibility in Aquarius, 20 Buff. L. Rev. 181 (1970); Pouros, The Psychiatrist’s Role in Determining Accountability for Crimes: The Public Anxiety and an Increasing Expertise, 52 Marq. L. Rev. 380 (1969); Taylor, Partial Insanity as Affecting the Degree of Crime—A Commentary on Fisher v. United States, 34 Calif. L. Rev. 625 (1946); Weihofen and Overholser, Mental Disorder Affecting the Degree of a Crime, 56 Yale L.J. 959 (1947); Woodbridge, Some Unusual Aspects of Mental Irresponsibility in the Criminal Law, 29 J. Orim. Law & Criminology 822 (1938-39); Comment, Commonwealth v. Ahearn; Psychiatric Testimony Ruled Inadmissible in Murder Trial to Show Lack of Deliberation and Premeditation, 71 Dick. L. Rev. 100 (1966); Commonwealth v. Weinstein: Psychiatric Testimony in Pennsylvania, 33 U. Pitt. L. Rev. 650 (1972); Note, Diminished Responsibility and Psychiatric Testimony in Pennsylvania, 28 U. Pitt. L. Rev. 679 (1967); English Homicide Act, 1957, 5 & 6 Eliz. II, c.ll, §2(1); see Regina v. Dunbar, 41 Cr. App. R. 182 (1957).
This case was originally argued October 9, 1970. On December 27, 1971, reargument was listed for the January 1972 Session at Philadelphia. By stipulation, the case was continued to the April Session at Philadelphia, and reargument was held on April 27, 1972.
In view of the disposition we reach on this issue we need not discuss appellant’s further contentions that (1) the trial court improperly allowed into evidence an involuntary confession; (2) the trial court abused its discretion by not allowing defense counsel
The defense of provocation and passion in a murder prosecution has been stated thusly: “ ‘Voluntary manslaughter is a homicide intentionally committed under the influence of passion. . . . The term “passion” as here used includes both anger and terror provided they reach a degree of intensity sufficient to obscure temporarily the reason of the person affected. . . . Passion, as used in a charge defining manslaughter . . . means any of the emotions of the mind known as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection. . . .’” Commonwealth v. Calandro, 231 Pa. 343, 350-51, 80 Atl. 571, 574 (1911). See also Commonwealth v. Jennings, 442 Pa. 18, 274 A. 2d 767 (1971); Commonwealth v. Moore, 398 Pa. 198, 157 A. 2d 65 (1959); Commonwealth v. Donough, 377 Pa. 46, 103 A. 2d 694 (1954); Commonwealth v. Palermo, 368 Pa. 28, 81 A. 2d 540 (1951); Commonwealth v. Wucherer, 351 Pa. 305, 41 A. 2d 574 (1945); Commonwealth v. Flax, 331 Pa. 145, 200 Atl. 632 (1938); Commonwealth v. Paese, 220 Pa. 371, 69 Atl. 891 (1908); Commonwealth v. Drum, 58 Pa. 9 (1868); see generally Michael and Wechsler: A Rationale of the Law of Homicide, 37 Colo. L. Rev. 1261, 1280-89 (1937) ; Note, Manslaughter and the Adequacy of Provocation: The Reasonableness of the Reasonable Man, 106 U. Pa. L. Rev. 1021 (1958).
Commonwealth v. Tomlinson, 446 Pa. 241, 284 A. 2d 687 (1971) (majority opinion by Bell, O. J., concurring opinion by Babbieri, J., dissenting opinion by Roberts, J., in which Jones and Pomeroy, JJ., joined); Commonwealth v. Weinstein, 442 Pa. 70, 274 A. 2d 182 (1971) (opinion in support of affirmance of judgment by Bell, C. J., Eagen and O’Brien, JJ., concurred in the result, opinion in support of reversal of judgment by Roberts, J., in which Jones and Pomeroy, JJ., joined); Commonwealth v. Rightnour, 435 Pa. 104, 253 A. 2d 644 (1969) (opinion in support of affirmance of judgment by Bell, O. J., opinion in support of re
Woodbridge, Some Unusual Aspects of Mental Irresponsibility in the Criminal Law, 29 J. Orim. Law & Criminology 822 (1938-39), quoted in Taylor, Partial Insanity as Affecting the Degree of Crime —A Commentary on Fisher v. United States, 34 Calif. L. Rev. 625 (1946).
Commonwealth v. Flax, 331 Pa. 145, 155-56, 200 Atl. 632, 636 (1938); Jacobs v. Commonwealth, 121 Pa. 586, 15 Atl. 465 (1888).
“ ‘If the defendant inflicted the wound in a sudden transport of passion, excited by what the deceased then said and by the preceding events which, for the time, disturbed her reasoning faculties and deprived her of the capacity to reflect, or while under the influence of some sudden and uncontrollable emotion excited by the final culmination of her misfortunes, as indicated by the train of events which have been related, the act did not constitute murder in the first degree.’ ” People v. Caruso, 246 N.Y. 437, 445-46, 159 N.E. 390, 392 (1927) (quoting from People v. Barberi, 149 N.Y. 256 (1896) (emphasis added). See Ferrin, v. People, 164 Colo. 130, 433 P. 2d 108 (1967); People v. Borchers, 50 Cal. 2d 321, 325 P. 2d 97 (1958); Baker v. People, 114 Colo. 50, 160 P. 2d 983 (1945); Maher v. People, 10 Mich. 212, 81 Am. Dec. 781 (1862); Perkins, Criminal Law (1969) at p. 67; see also Commonwealth v. Colandro, 231 Pa. 343, 80 Atl. 571 (1911).
See footnote 4, supra.
Thus even if confronted with adequate provocation a defendant may not kill, in the heat of passion, someone not responsible for the provocation. Rex v. Manchuk, 4 D.L.R. 737 (1937) (discussed in Michael and Weehsler, Criminal Law and its Administration (1940) at pp. 152-53).
The great weight of authority holds that in nearly all instances it is for the jury to determine whether there was adequate “cooling time”. See, Michael and Weehsler, Criminal Law and its Administration (1940) at 155 n.18 and cases cited therein. Only in very rare and exceptional cases can a court hold as a matter of law that a defendant had adequate “cooling time”. Commonwealth v. Dews, 429 Pa. 555, 239 A. 2d 382 (1968) (cooling time sufficient where alleged provocation occurred one month before slaying).. Here some of the events relied upon by appellant to show provocation occurred but a short time before the actual slaying. We cannot agree with the trial court’s finding that appellant acted after an adequate “cooling time”.
Tiffany v. Commonwealth, 121 Pa. 165, 15 Atl. 462 (1888); woe generally eases cited in footnote 4, supra.
Commonwealth v. Melton, 406 Pa. 343, 178 A. 2d 728 (1962), cert. denied, 371 U.S. 851, 83 S. Ct. 93 (3962); Commonwealth v. Woodhouse, 401 Pa. 242, 164 A. 2d 98 (1960).
“[T]he test at common law and employed by the courts in determining the mental capacity of a defendant to stand trial or to be sentenced or executed is not the M’Naghten ‘right or wrong’ test but whether the defendant is able to comprehend his position and make a rational defense.” Commonwealth v. Moon, 383 Pa. 18, 23, 117 A. 2d 96, 99 (1955); Commonwealth v. Novak, 395 Pa. 199, 150 A. 2d 102 (1959); Commonwealth v. O’Brien 46 Wash. Co. 10 (1965).
Commonwealth v. Wooding, 355 Pa. 555, 559, 50 A. 2d 328, 329 (1947); Commonweatlh v. Stabinsky, 313 Pa. 231, 238, 169 Atl. 439, 442 (1933); see Act of December 1, 1959, P. L. 1621, 18 P.S. §4701.
Boche, Truth Telling, Psychiatric Expert Testimony and the Impeachment of Witnesses, 22 Pa. B.Q. 140, 146 (1951).
Diamond and Louisell, The Psychiatrist as an Expert Witness: Some Buminations and Speculations, 63 Mich. L. Bev. 1335, 1353 (1965).
Commonwealth v. Ingram, 440 Pa. 239, 270 A. 2d 190 (1970); Commonwealth v. Brown, 436 Pa. 423, 260 A. 2d 742 (1970); Commonwealth v. Walters, 431 Pa. 74, 244 A. 2d 757 (1968); Commonwealth v. McCausland, 348 Pa. 275, 35 A. 2d 70 (1944); Commonwealth v. Kline, 341 Pa. 238, 19 A. 2d 59 (1941); see also Commonwealth v. Campbell, 445 Pa. 488, 284 A. 2d 798 (1971).
Mental Health and Retardation Act of 1966, Special Sess. No. 3, October 20, P. L. 96, art. IV, §413, 50 P.S. §4413.
Mental Health and Retardation Act of 1966, Special Sess. No. 3, October 20, P. L. 96, art. IV, §406, 50 P.S. §4406; see also American Bar Foundation, The Mentally Disabled and the Law (1962) at 367.
Indeed one leading psychiatrist and authority on correctional programs, Dr. Karl Menninger, has suggested that the security of
“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 by creating a false sense of diminished danger through a definite remedial measure. Actually, it does not remedy anything, and it bypasses completely the real and unsolved problem of how to Identify, detect, and detain potentially dangerous citizens.
“What kind of creature was this anyway? And how did he get that way? What gave him the wild and fearful idea? What was he most afraid of? What was burning inside him? What might have deterred him? . . . How do patterns of thought and action such as this get started, and how can the rest of us become alerted in time to prevent such tragedies?” Menninger, The Crime of Punishment 108-109 (1968) (emphasis in original).
Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600, 69 S. Ct. 290, 293 (1949) (dissenting opinion).
Concurring in Part
Concurring and Dissenting Opinion by
I concur in the grant of a new trial because I am persuaded the trial court erred in precluding the jury from returning a verdict of guilty of voluntary naan-
In a series of prior cases, this Court consistently ruled psychiatric testimony to the effect that one accused of crime suffered from an emotional or mental compulsion or disturbance which influenced his conduct is not admissible as trial evidence on the issue of guilt,
Knowledge of what governs the mind and man’s behavior has advanced over the centuries, but the science of psychiatry has a long, long way to go before it can be safely relied upon for the purposes the Majority approves and advocates.
The ruling of the Majority in this case opens the door to pitfalls of monumental proportions. To say the least it is illadvised. Prom now on in Pennsylvania every pet theory advanced by a psychiatrist will have probative value in determining criminal responsibility. The psychiatrists should have a field day.
I also have serious reservations about the correctness of the trial court’s ruling permitting McCusker’s confession, in evidence, but since the Majority do not discuss this issue, I will likewise refrain from doing so.
It is always admissible on the issue of punishment.
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