426 PA 305 - Commonwealth v. Howard

¶1Dissenting Opinion by

Mr. Justice Cohen :

¶2I dissent from the imposition of the death sentence and its affirmance by this Court. See my dissent in Commonwealth v. Ahearn, 421 Pa. 311, 218 A. 2d 561 (1966), and the opinion of Judge Breitel of the New York Court of Appeals in People v. Moseley, 20 N.Y. 2d 64, 281 N.Y.S. 2d 762 (1967).

¶3Dissenting Opinion by

Mr. Justice Roberts:

¶4I continue to adhere to the views expressed last year in my dissenting opinion in Commonwealth v. *321Ahearn, 421 Pa. 311, 331, 218 A. 2d 561, 571 (1966),1 and would, consistent with those views, vacate the instant judgment and remand so that the court below could consider the psychiatric testimony as it relates to the degree of guilt.2

¶5In Ahearn, the majority opinion conceded that psychiatric testimony was both admissible and relevant for the purpose of determining penalty following a finding of murder in the first degree.3 Thus, even if I were able to accept the rationale of Ahearn, I believe, in view of the psychiatric findings of both the majority of this Court and of the en banc court below, the imposition of the death penalty is improper in this case. Accordingly, I would exercise our authority under the Act of June 24, 1939, P. L. 872, §701, 18 P.S. §4701, *322and instruct the court below to sentence Howard to life imprisonment. See Commonwealth v. Green, 396 Pa. 137, 144-46, 151 A. 2d 241, 245 (1959).

¶6Appellant concedes that under the M’Naghten Rule, which is the current test for criminal responsibility in Pennsylvania, he is guilty of murder.4 And given Ahearn, the court below properly found him guilty of murder in the first degree. But the M’Naghten Rule is totally irrelevant to the question of whether or not the death sentence ought to be imposed in a given case. Indeed by not holding that the imposition of the death penalty, despite the existence of a serious mental disease or defect, amounts to an abuse of discretion, we are ignoring the teachings of Commonwealth v. Green, supra at 148, 150, 151 A. 2d at 246-47, 248 (emphasis supplied) : “No more awesome duty nor solemn obligation comes within the province of a judge than the decision whether penalty of death or life imprisonment shall be imposed upon a convicted first degree murderer. There is no rule that requires proof of mitigating or extenuating circumstances to reduce the penalty from death to that of life imprisonment. The imposition of the death penalty by a judicial tribunal should be made only when it is the sole penalty justified both. by the criminal act and the criminal himself and then only after a full and exhaustive inquiry into both the criminal act and the criminal himself.

¶7“An appropriate exercise of judicial discretion as required by the statute contemplates that the death penalty'be imposed where all the facts surrounding the criminal act and the criminal actor have been exhaus*323lively considered and where, after such consideration, no other conclusion can be justified than the extermination of the convicted criminal by death. Determination of the appropriate penalty arrived at in any other manner constitutes an abuse of the judicial discretion.”

¶8The court below was aware of the Greenprinciple but concluded that, in view of certain aggravating factors,5 Howard’s mental condition did not justify imposing a life sentence. Although the court below did not specifically refer to the M’Naghten test, it did seem to feel that it was bound by it on sentencing as well as in determining the degree of guilt, for it held that under Pennsylvania law “the mere presence of mental disease or defect, not amounting to such impairment that the murderer did not know the difference between right and wrong, will not prevent the finding of murder in the first degree or the imposition of the death penalty.”6 But as I have already stated M’Naghten is *324a test for determining criminal responsibility, not the appropriate penalty.

¶9I dissent.

¶10 Interestingly the majority opinion does not even cite Ahearn. Yet there can be no question that that decision, as both the appellant and appellee recognize, is crucial to the disposition of the instant case.

¶11 A recent note in 71 Dick. L. Rev. 100 (1966) characterizes the Ahearnholding as having “disregarded modern enlightened authority and unwisely restricted the purpose for which psychiatric testimony may be admitted into evidence.” Not only does this note, in my view, demonstrate the truth of its principal thesis but it also convincingly shows that Ahearnrepresents a new development in the law of Pennsylvania, for “while prior decisions have held that neither judge nor jury is to be controlled by psychiatric testimony, and that such testimony is to be accorded little weight, no prior Pennsylvania Case has ever held that such testimony is inadmissible to show a lack of the elements necessary to establish murder in the first degree.” Id. at 104.

¶12I continue to beUeve that the most realistic rule devised to deal with this problem is that of The American Law Institute: “Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense.” A.L.I. Model Penal Code, §4.02(1) (Official Draft, 1962). See also People v. Gorshen, 51 Cal. 2d 716, 726-27, 336 P. 2d 492, 498-99 (1959).

¶13421 Pa. at 325, 218 A. 2d at 568.

¶14 In my view the entire area of criminal responsibility could benefit from a fresh review by the judiciary. See, e.g., United States v. Freeman, 357 F. 2d 606 (2d Cir. 1966) (adopting the A.L.I. Model Penal Code test of legal insanity). I believe this to be a step in the right direction.

¶15 These aggravating factors were: (1) the murder was committed by a convict already serving a long prison sentence; (2) the defendant had previously been convicted of felonies involving the use of violence; (3) at the time the murder was committed the defendant also caused serious bodily injury to another person. At the same time, however, the court recognized Howard’s serious mental incapacity prevented him from fully controlling his responses.

¶16 The court below felt that the above conclusion was necessitated by certain language from Commonwealth v. Smith, 405 Pa. 456, 459, 176 A. 2d 619, 620 (1962), to wit: “This Court has sustained a verdict of first degree murder with penalty of death where defendant allegedly had an irresistible impulse, was a moron or a mental defective or a sexual pervert or a psychopathic personality, or had been previously confined in the hospital for the criminal insane for 14 years, or was a schizophrenic psychopath or was an unstable, mentally defective moron, or was feeble-minded. [Citations omitted'].” Eaeh case must be decided on its own facts and the mere existence of psychiatric evidence tending to show the existence of a mental disease or defect is not sufficient to preclude the imposition of the death penalty. Most, if not all, *324of the cases cited in the Smithopinion are distinguishable either because of the quantum of psychiatric testimony and/or because, as in Smith, a jury rather than a judge had determined the penalty. In the latter circumstances, this Court may not reverse the sentence for an abuse of discretion. See Commonwealth v. Taranow, 359 Pa. 342, 344-45, 59 A. 2d 53, 54 (1948). Nevertheless, in light of current medical knowledge, I cannot subscribe to the broad implications drawn by the court below from Smith’s sweeping statement.

How this case has been cited