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decided: January 26, 1971.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1967, No. 1591, in case of Commonwealth v. Stephen Z. Weinstein.


Raymond J. Bradley, with him Louis Lipschitz, for appellant.

James D. Crawford, Deputy District Attorney, with him Carl B. Feldbaum, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Mr. Justice Cohen took no part in the decision of this case. Opinion in Support of the Affirmance of the Judgment of Sentence by Mr. Chief Justice Bell. Mr. Justice Eagen and Mr. Justice O'Brien concur in the result. Opinion in Support of Reversal of Judgment by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice Pomeroy join in this opinion.

Author: Per Curiam

[ 442 Pa. Page 73]

The Court being equally divided, the judgment of sentence is affirmed.


Judgment of sentence affirmed.*fn*

[EDIT ] Opinion in Support of the Affirmance of the Judgment of Sentence by Mr. Chief Justice Bell:

Appellant Stephen Weinstein, while represented by counsel, pleaded guilty to an indictment charging him with murder. A three-Judge Court, after rejecting defendant's offer of psychiatric testimony as to the degree of his guilt, found him guilty of murder in the first degree and sentenced him to life imprisonment. The present appeal was taken from this Judgment of Sentence.

The appellant makes numerous contentions in this appeal, but, most importantly, he asks the Court to specifically overrule the recent decisions of this Court and the long-established and recently reaffirmed law of Pennsylvania. Moreover, realistically, and no matter how camouflaged, he asks the Court to turn over, in large measure, the determination of guilt of murder in the first degree to psychiatrists. Appellant advocates that the Court adopt, as a basic test of first-degree murder, the opinions of psychiatrists which, as is well-known, almost always are based upon the self-serving and unsworn statements of the defendant and his family, which statements are almost invariably not subject to proof or even to cross-examination. If adopted, this would be one of the most regrettable decisions ever made in the history of Pennsylvania. Although

[ 442 Pa. Page 74]

    substantial advances have been made in the field of psychiatry, it is still (as nearly everyone knows) an inexact science and the most unstable, vacillating, fluctuating, indefinable and constantly changing "guesswork" ever yet invented. Furthermore, the adoption of appellant's contentions would make a mockery of "Stare Decisis," the Rock of Gibraltar of the Law.*fn1 And to pile Pelion upon Ossa, it is likewise obvious that the adoption of appellant's contentions would foreshadow the elimination of the famous and countless times affirmed M'Naghten Rule and the substitution of some new, indefinite and indefinable psychiatric test.

For these reasons, I deem it important to set forth at some length both the facts and the pertinent and controlling principles of law which have been long established and recently reaffirmed by this Court.

Appellant, Stephen Z. Weinstein, while represented by two attorneys, entered a plea of guilty to an indictment charging him with murder. The case was heard beginning on May 13, 1968, by a three-Judge Court. That Court, after rejecting appellant's offer of psychiatric testimony as to the degree of guilt, found him guilty of murder in the first degree. The Court, on May 16, 1968, sentenced appellant to life imprisonment. From this Judgment of Sentence, Weinstein appeals.

The most important question in this appeal is whether we should overrule three of the very recent decisions of this Court, as well as our long-established law, and hold that psychiatric evidence is admissible to prove that the defendant lacked the mental ability to form an intent to kill, which is a necessary ingredient of first-degree (nonfelony) murder.

I shall first discuss the sordid details of this murder and the important facts which are set forth in defendant-appellant's confession.

[ 442 Pa. Page 75]

At the time of the murder, appellant was the proprietor and operator of a tobacco shop at a pier along the Delaware River in what was known as the "Philadelphia 1700 Complex." He was also the joint owner of a tobacco shop at 3643 Walnut Street in Philadelphia, near the campus of the University of Pennsylvania.

Appellant first met his victim, Green, on October 16, 1967, when Green came into his Walnut Street store to purchase a pipe. Attracted to Green by his tight-fitting levis, appellant engaged Green in a conversation about boats, in which they had a mutual interest. Appellant then invited Green to visit his tobacco shop in the Philadelphia 1700 Complex, where he could see the boats on the Delaware River. Green accepted and a meeting was arranged for the following Sunday, October 22.

Before the Sunday meeting, appellant emptied into a small jar the contents of some ten sleeping capsules, intending to use them on Green. When Green came to appellant's Walnut Street shop on Sunday, appellant offered to get him a hamburger, and the unsuspecting Green accepted appellant's hospitality. Appellant sprinkled the powder on the hamburger and gave it to Green. Appellant and Green then took a taxicab to appellant's Philadelphia 1700 Complex shop. By the time they reached the shop, Green complained of drowsiness, and within an hour he fell to the floor unconscious.

[ 442 Pa. Page 76]

Shortly thereafter, appellant and a young friend, James Hammell, to whom appellant had previously telephoned, attempted to revive Green, but to no avail. According to appellant's confession, after Hammell left his shop, he was suddenly filled with a strange sexual urge.*fn2 Appellant then strangled Green, first Page 76} with a piece of rope and then with his bare hands, and this killed him. Shortly afterward, appellant, with the assistance of Hammell and some other boys, attempted to dispose of Green's body. Unable to bury the body in a wooded area near Reading, Pennsylvania, appellant and Hammell eventually placed the body in a trunk, filled it with stones, and dumped it into the Delaware River near the Philadelphia 1700 Complex. Appellant subsequently fled to New York City, where he was eventually apprehended by the New York police. After his apprehension and after having been warned of all his Constitutional rights, he gave a confession to Richard A. Sprague, Assistant District Attorney of Philadelphia, which disclosed the hereinabove recited facts, and this confession was introduced at his murder hearing without objection.

This confession formed the basis for the prosecution's case at the degree-of-guilt hearing. The prosecution also introduced (1) statements by James Hammell corroborating some parts of appellant's confession, and (2) the testimony of Dr. Robert L. Catherman, Assistant Medical Examiner of Philadelphia, who testified as to the cause of death.

Sprague further testified that appellant told him the following additional history of his life: He (Weinstein) had shown signs of abnormal sexual attitudes from his early teens. He had (so he said) a habit of tearing up Boy Scout uniforms, from which he derived some sexual satisfaction. As he grew older this fetish increased to the point where he derived sexual pleasure (a) from watching young men who wore tight-fitting levis, or trousers, and (b) from destroying these garments. Later, he came into contact with several teenage boys in the neighborhood of his Walnut Street

[ 442 Pa. Page 77]

    store. He induced these boys to steal levis for him to destroy, and occasionally to participate in sexual conduct with him.

Male undergraduates from the University of Pennsylvania frequented appellant's store on Walnut Street. Stimulated by the sight of these young men in tight-fitting levis, appellant on several occasions gave them drugs while they were in his tobacco shop, thereby enabling him (so he said) to take their levis from them and tear them up for his perverted pleasure.

Dr. Matthew T. Moore, Professor of Neuropathology at the University of Pennsylvania Medical School, who was called by the appellant, had examined the appellant on three separate occasions after his arrest, and had also interviewed appellant's parents. Based on these interviews, appellant's attorneys offered to prove by Dr. Moore that at the time of the commission of the murder, appellant (instead of being moved by an irresistible sexual impulse) lacked the mental ability required to form a specific intent to kill -- which is an essential ingredient of nonfelony first-degree murder cases -- and that he would have been unable to carry out a killing by premeditation. This proffered testimony was offered at defendant's guilt hearing after his plea of guilty to murder, to rebut the Commonwealth's evidence that defendant had committed murder in the first degree, i.e., a willful, deliberate and premeditated killing which, I repeat, requires a specific intent to kill. This specific intent can, of course, be found by the jury or the Judge who tries the case from all the pertinent facts and all the attendant circumstances, together with all reasonable inferences therefrom. Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108; Commonwealth v. Ewing, 439 Pa. 88, 264 A.2d 661; Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773.

[ 442 Pa. Page 78]

The Commonwealth's objection to the introduction of this evidence at the trial hearing on the issue of murder and the degree thereof was sustained.

We note at this point that Dr. Moore's testimony was thereafter properly admitted by the Court at the sentencing hearing to aid the Court in its determination of an appropriate sentence. It is well and long established that, in determining and imposing a sentence, a Court (after a guilty plea, or after a jury's verdict of guilty) must consider (1) the criminal act as well as all the attendant and surrounding circumstances of the crime, and (2) also all the evidence, culpatory and exculpatory, incriminating and extenuating, concerning the defendant himself, his alleged thoughts, his actions, his reactions and his prior life. To epitomize: the sentence or penalty is determined and imposed from a consideration of the crime and the criminal. See Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728; Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540, and cases cited therein.

The Present Law

Appellant did not offer this psychiatric evidence to prove insanity, nor does he specifically ask us to extirpate the M'Naghten Rule, which has been long and firmly established in Pennsylvania.*fn3 Instead, he ...

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