Appeals from order of Court of Quarter Sessions of Philadelphia County, Jan. T., 1965, Nos. 346, 347 and 348, in case of Commonwealth of Pennsylvania v. Curtis Byrd.
William H. Brown, III, with him William F. Hall, Jr., for appellant.
William J. Stevens, Jr., Assistant District Attorney, with him John J. DiPaul, II, and Joseph M. Smith, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts.
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 ordered 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): "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 has 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. '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 involving his consciousness of the facts and the operations of his mind in 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, 173 A.2d 468, where we said (pages 44-45): ". . . The privilege against self-incrimination does not prohibit the introduction of evidence given by a defendant voluntarily: Commonwealth v. Bryant, 367 Pa. 135, 79 A.2d 193 (1951), cert. den. 341 U.S. 954, 71 S. Ct. 1007. 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 ...