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decided: April 19, 1966.


Appeal from order of Court of Common Pleas of Allegheny County, Jan. T., 1965, No. 1773, in case of Commonwealth ex rel. Raymond Cummins v. Grant Price, Warden.


Silvestri Silvestri, with him Edward P. Zemprelli, for appellant.

Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones concurs in the result. Mr. Justice Roberts concurs in the result on the ground that petitioner has set forth no facts and made no allegations entitling him to relief at this stage of the proceedings by writ of habeas corpus. Mr. Justice Musmanno dissents. Dissenting Opinion by Mr. Justice Cohen.

Author: Bell

[ 421 Pa. Page 398]

Defendant*fn1 was indicted for the murder of Nancy Flowers on December 21, 1963. He appeals from an Order of the Court below dismissing his pretrial petition for a writ of habeas corpus.

Defendant's petition for the writ, which was filed November 12, 1964, averred (1) that he suffered permanent injury at the time of the alleged murder; and (2) that, as a result of this injury, he "has suffered a permanent loss of memory of [the facts, circumstances and all] the events prior to, at the time of and subsequent to the circumstances surrounding his arrest"; and (3) that his constitutional rights would be violated if he were brought to trial when unable ". . . to testify in his own behalf and otherwise intelligently aid his counsel in preparing and presenting a rational defense." He therefore asked (a) for absolute and complete discharge from custody and (b) that the murder indictment and any other criminal charges against him be dismissed, or alternatively (c) that the trial on the murder indictment be continued until he has regained his memory, and (d) that he be admitted to bail.

Summary of Testimony

We shall summarize the testimony presented at the habeas corpus hearing. Defendant was observed in the early morning of December 21, 1963, by two police officers. Their attention was attracted to him because he was driving on the wrong side of the road. They were on a special mission at the time and did not stop. While returning from this mission, they saw defendant's car parked on the berm of the road. When they pulled their car alongside defendant's car, they noticed two

[ 421 Pa. Page 399]

    persons sitting upright in the front seat of defendant's auto. Both of defendant's eyes were bulging out of his head and he was holding his handkerchief up to the right side of his face. The officers asked him if he was in need of medical assistance; he replied that he was all right, started his engine and drove off. The officers radioed the license number in order to identify the owner. When this information was received, they also discovered that police officer Frank Cummins was defendant's brother. Officer Cummins was picked up and the three officers proceeded to the Briggs house, where Nancy Flowers lived and worked for Briggs as a cook and housekeeper.

Defendant's car was found parked in Briggs' driveway; Nancy Flowers was lying on her side on the front seat. Defendant was leaning against the Briggs house, about 100 feet away from the car. Both were taken to the hospital, where Nancy Flowers died of a gunshot wound on the left side of her head.*fn2 Defendant had a gunshot wound on the right side of his head.

Officer Cummins found a revolver on the front seat under the body of Nancy Flowers. The bullets taken from the heads of defendant and Nancy were test-fired from the revolver by the County Crime Laboratory and were found to be of the same general class characteristics, but the laboratory was unable to make a more positive identification.

[ 421 Pa. Page 400]

Defendant has consistently denied any knowledge or memory of the events of December 20th or 21st. However, there was no evidence and there is no contention by defendant that prior to Nancy's death, or at the time of her death, or at any time subsequent thereto, he was insane. On the contrary, he and all his witnesses assert that he was sane and competent before Page 400} Nancy's death, and is now completely sane and completely competent.

All the evidence of the crime was circumstantial but was sufficient to establish a prima facie case of murder in the first degree: cf. Commonwealth v. Finnie, 415 Pa. 166, 202 A.2d 85; Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911; Commonwealth v. Gooslin, 410 Pa. 285, 189 A.2d 157; Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861. The lower Court found (1) that according to the weight of medical testimony at the time of the hearing (on the petition for habeas corpus), defendant was not feigning a loss of memory concerning the events and actions which took place on December 20th and 21st, 1963; (2) that only two of the five medical experts (three psychiatrists, a neurologist and a psychologist) expressed the opinion that defendant's loss of memory would be permanent. The lower Court then held that under all the aforesaid facts defendant must stand trial because (a) he is admittedly sane and does not need or even seek hospital care, and (b) no legal authority or justification exists for postponing the trial or releasing a person charged with a crime who is sane but has no memory concerning the alleged criminal act, and (c) amnesia or circumscribed loss of memory is in the nature of an affirmative defense, comparable to that of insanity. For these reasons, the lower Court dismissed defendant's petition. Although we do not agree with all of these reasons, the Order of the lower Court must be affirmed.

Basically what defendant is seeking is absolute and permanent release from any trial for any event which occurred on December 20th or 21st because he cannot remember anything that occurred on those days, or in the alternative that his trial be continued until he recovers his memory of the events which took place on those ...

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