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decided: June 28, 1972.


Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1968, No. 69, in case of Commonwealth of Pennsylvania v. James McCuster.


John J. Hickton and John M. Tighe, with them Dougherty, Larrimer, Lee & Hickton, for appellant.

Robert L. Eberhardt, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Concurring and Dissenting Opinion by Mr. Justice Eagen. Mr. Justice O'Brien joins in this opinion.

Author: Roberts

[ 448 Pa. Page 384]

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*fn1 that such evidence is competent and in certain circumstances admissible. Appellant did not raise the defense of complete insanity. Our decision today does not in any manner affect the M'Naghten test presently employed

[ 448 Pa. Page 385]

    in this Commonwealth to determine a defendant's sanity. Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962), cert. denied, 371 U.S. 851, 83 S. Ct. 93 (1962).

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 modern 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.*fn2 Because the trial court refused to admit psychiatric evidence relevant to whether appellant acted in the heat of passion when he committed the act, we reverse the judgment of sentence and grant a new trial.*fn3

[ 448 Pa. Page 386]

The actual commission of the slaying was not contested by appellant, but instead he sought to prove that he acted in the heat of passion.*fn4 To advance this partial defense to murder appellant offered psychiatric evidence. In rejecting that proferred evidence the trial court relied on this Court's earlier closely divided cases which precluded the admission of such evidence.*fn5 Commonwealth Page 387} v. Tomlinson, 446 Pa. 241, 284 A.2d 687 (1971); Commonwealth v. Weinstein, 442 Pa. 70, 274 A.2d 182 (1971); Commonwealth v. Rightnour, 435 Pa. 104, 253 A.2d 644 (1969); Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 (1967) and Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966), however, dealt with the issue of whether a defendant could introduce psychiatric evidence to show he lacked the capacity to deliberate and premeditate. Moreover, those cases regarded the competency of psychiatric testimony with a rigidity which has been constructively criticized: "'If a doctor were to bleed his patients with leeches today, or if a psychiatrist were to attribute insanity to the moon, the hue and cry would be tremendous. And yet instance after instance may be pointed out wherein the law has remained, sometimes for hundreds of years, curiously rigid, despite the changes in scientific opinion upon which the law was based. Many rules in the criminal law are still affected by early views concerning psychology which views are now outmoded or repudiated by newer discoveries through experimentation. A large number fail utterly to take cognizance of advances in education and educational methods.'"*fn6 Upon reflection and further consideration we now conclude that psychiatric evidence, coming as it does from a "recognized and important branch of modern medicine,"

[ 448 Pa. Page 388]

    should be admissible at trial for the purpose of determining whether a defendant ...

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