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decided: June 21, 1974.


Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, April T., 1972, No. 3716, in case of Commonwealth of Pennsylvania v. James Simms.


Samuel J. Reich, with him Cooper, Schwartz, Diamond & Reich, for appellant.

Peter Foster, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Jacobs, J. Concurring Opinion by Spaeth, J. Dissenting Opinion by Hoffman, J.

Author: Jacobs

[ 228 Pa. Super. Page 87]

On the evening of October 21, 1971, the appellant, James Simms, was involved in an incident in a bar in Pittsburgh which culminated in appellant's shooting Francis Quinn in the knee. Following a trial by jury, the appellant was found guilty on all four counts with which he was charged: assault with intent to maim, aggravated assault and battery, pointing and discharging a firearm, and violation of the Uniform Firearms Act. On appeal to this Court, it is appellant's primary contention that the trial judge erred in his instructions to the jury relating to the appellant's mental capacity to commit the crimes charged.*fn1 Specifically, he first

[ 228 Pa. Super. Page 88]

    contends that since he introduced evidence tending to show a lack of intent as to the criminal acts charged, he is entitled to an instruction on the doctrine of diminished responsibility. In addition, appellant maintains that since this evidence was in support of his plea of not guilty by reason of insanity, the Commonwealth should bear the burden of proving sanity beyond a reasonable doubt. We find the trial judge's instructions on these points entirely consistent with present Pennsylvania law and, therefore, affirm.

At the time the incidents giving rise to this case occurred, appellant was a law student at Duquesne Law School. He and some friends had stopped at a bar late one evening where they engaged in a game with a group of which Francis Quinn, the victim, was a member. A fight occurred between the appellant and another member of this group, the intensity of which is in dispute. The Commonwealth witnesses testified that it was a brief scuffle and the appellant received only a minor cut. The defense produced testimony of a melee of some violence in which the appellant was severely battered about the head and face. There was evidence from defense witnesses that immediately following the incident appellant acted strangely and spoke incoherently. Appellant himself testified that he remembers no details of the fight and nothing at all about the subsequent events.

Immediately following the occurrence in the bar, appellant left the premises, entered his car and drove away. When he returned after a brief interval he had a gun, and there is no dispute that he then shot the victim, wounding him in the knee. Friends of the victim testified that they acted immediately to disarm the appellant and in the struggle for the gun he suffered

[ 228 Pa. Super. Page 89]

    extensive injury. He was hospitalized for medical and psychiatric treatment for some times after the episode.

Appellant pleaded not guilty by reason of insanity. He based his defense on the contention that the injuries he received in the first fight impaired his cognitive functioning to such a degree that at the time he shot the victim he was unaware of what he was doing. A psychiatrist who examined him 2 days after the shooting diagnosed his condition as an organic brain syndrome and testified at the trial that such brain damage could prevent a person from judging the difference between right and wrong. The doctor further testified that the appellant's mental impairment, if sustained in the first fight in the bar, could render him unable to form the specific intent to shoot the victim. Other doctors, called by the Commonwealth, disagreed with this diagnosis and indicated there was no basis on which to form an opinion that any brain damage had occurred or that the appellant was at any time insane.

Appellant argues that in view of the psychiatric testimony presented, the trial judge erred by instructing the jury solely on the M'Naghten*fn2 test for legal sanity. It is his contention that the circumstances of his case required the trial judge to instruct the jury to consider the psychiatrists' testimony not only in their determination of legal sanity, but also in their determination of the appellant's capability to form the requisite intent to commit the crime. As authority for his position, appellant advances the decision in Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972).

McCusker holds that psychiatric evidence is admissible for the limited purpose of determining whether

[ 228 Pa. Super. Page 90]

    the accused acted in the heat of passion, even when no evidence is submitted for a defense of complete insanity under the traditional M'Naghten test. This holding rose out of a situation in which the defendant in a murder prosecution was attempting to prove by way of a defense that his unbalanced mental state caused him to respond violently to certain events and he was, therefore, guilty not of murder but only of voluntary manslaughter. The Court noted that proof of voluntary manslaughter required a showing that the defendant acted under the influence of a sudden passion, adequately provoked, in the commission of an intentional homicide. Although the adequacy of the provocation always remains an objective standard, the Court stressed that once the standard has been met the defendant still must prove that his response to the provoking event was to act in a heat of passion. Due to the subjective nature of the element of passion, the Court reasoned that the accused should be permitted to introduce evidence relevant to his state of mind at the time of the offense. Psychiatric testimony to the effect that the defendant's impassioned state was rooted in a mental disorder lends support to his contentions and is, therefore, peculiarly relevant to this type of defense.

Prior to McCusker, Pennsylvania courts considered psychiatric evidence in only two instances: to determine legal insanity as grounds for complete acquittal and to arrive at an appropriate sentence for a particular defendant. See Commonwealth v. Tomlinson, 446 Pa. 241, 284 A.2d 687 (1971), and the cases cited therein. Evidence on the subject of insanity was admitted for the consideration of the jury or judge only as limited by the M'Naghten test. The test permits the trier of fact to determine whether the accused labored under such defective reason that he was incapable of knowing what he was doing at the time he committed the offense or, if he did know what he was doing, that he did not

[ 228 Pa. Super. Page 91]

    know it was wrong. Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98 (1960). Legal insanity, established under this formula, is grounds for complete acquittal in Pennsylvania. If, however, the fact finder determines that the defendant was capable of understanding the nature and quality of his acts and the difference between right and wrong,*fn3 the psychiatric testimony cannot be used to refute the elements of the crime charged. See Commonwealth v. Vogel, 440 Pa. 1, 268 A.2d 89 (1970) (opinion by Justice, now Chief Justice Jones). This has been the long established law in Pennsylvania. The Supreme Court has repeatedly refused to abandon the M'Naghten rule in favor of some other test for insanity. See, e.g., Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 (1962); Commonwealth v. Woodhouse, supra. It has with equal tenacity rejected the use of psychiatric testimony as a partial defense negating the element of intent in specific intent crimes. See, e.g., Commonwealth v. Tomlinson, supra; Commonwealth v. Weinstein, 442 Pa. 70, 274 A.2d 182 (1971), and cases cited therein. Although pressed with theories of diminished capacity or diminished responsibility as supplements to the M'Naghten rule, psychiatric testimony has not been accepted to prove the lack of specific intent to commit a criminal act.

McCusker does not represent a departure from this line of cases. After specifically reasserting adherence to M'Naghten's test, the Court in McCusker distinguishes those cases which refuse to recognize something less than legal insanity to prove incapacity to intend a criminal act. The opinion directs itself to an entirely separate consideration: the particular defendant's mental condition during the perpetration of a homicide and whether that condition constituted a heat of passion

[ 228 Pa. Super. Page 92]

    sufficient to reduce his offense from murder to manslaughter. Holding psychiatric testimony relevant and admissible as an aid to proving this highly subjective element provides an additional use for such testimony which is consistent with established principles of Pennsylvania law. "[T]his Court has traditionally allowed an accused to offer testimony in an effort to establish his state of mind at the time of the crime." Commonwealth v. McCusker, supra at 391, 282 A.2d at 290.

In spite of the explicit rejection of the doctrine of diminished responsibility, the appellant in the present case feels that the rationale of McCusker logically extended compels the adoption of the concept expressed in that doctrine. He argues that it is anomalous to permit consideration of psychiatric testimony to prove that the defendant in a murder charge acted without malice and in the heat of passion, while limiting such evidence in other crimes involving malice. He maintains that according to McCusker evidence of mental abnormality should be evaluated to disprove the element of malice present in two of the crimes with which he was charged: assault with intent to maim and aggravated assault and battery. If it could be proven that he acted without malice in committing the acts constituting these crimes, his conviction could be reduced to simple assault and battery. Of course, the other two crimes charged, pointing and discharging a firearm and violation of the Uniform Firearms Act, having no elements of malice, would remain unaffected. This argument is based on a misunderstanding of the term "malice".

Malice as it is defined in law is not simply a general description of an actor's frame of mind. It is susceptible to precise definition: "'. . . malice in the legal sense imports (1) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular

[ 228 Pa. Super. Page 93]

    harm which is produced or harm of the same general nature, or (b) the wanton and willful doing of an act with knowledge of circumstances indicating awareness of a plain and strong likelihood that such harm may result.'" Commonwealth v. Rife, 454 Pa. 506, 514, 312 A.2d 406, 410 (1973), quoting R. Perkins, Criminal Law at 679 (1957) [emphasis by the Court]. Although malice as explained in these terms comprehends the issue of the individual's state of mind, it also includes the lack of mitigating circumstances such as are recognized in law. Thus, in a homicide case, if the defendant proves he acted in a heat of passion which was inspired by adequate provocation and without sufficient time for cool consideration, mitigating circumstances are found by law to exist. In such a case, a murder charge is reduced to voluntary manslaughter, a crime without malice, because a finding of "recognized mitigation" was made.

Recognition of a state of mind which mitigates the offense of murder to that of voluntary manslaughter, however, does not aid a defendant accused of a lesser offense. "To say in such cases that one crime is committed with malice and the other without refers not to a difference in the defendant's state of mind, but to the existence of mitigating circumstances which the law recognizes in homicide cases as sufficient to reduce the offense from murder to voluntary manslaughter [citations omitted] but which in the case of lesser offenses are not relevant to the question of guilt." Commonwealth v. Rife, supra at 513, 312 A.2d at 410. Evidence of mental aberration is admissible, by McCusker, to prove a state of passion obtaining in an individual at the time he commits a homicide, hence proving he acted without malice due to a finding of "recognized mitigation". McCusker is no authority to say that a mental condition not recognized by law as mitigating an offense can be proven by psychiatric testimony. Since

[ 228 Pa. Super. Page 94]

    appellant here was convicted of assault with intent to maim and aggravated assault and battery, crimes for which no particular state of mind is recognized in mitigation, this Court could permit consideration of psychiatric evidence tending to disprove a malicious state of mind only by greatly broadening and changing the nature of the present insanity defense under M'Naghten.

Appellant proposes we make such a change and allow this type of evidence not only to disprove malice but also to disprove specific intent when that element is included in a crime. It is argued that the logical development of the law surrounding the insanity defense and the growing appreciation of the science of psychiatry leads to the conclusion that evidence of mental disorder is relevant and probative of these issues, and sufficient to call for a reduction of the offense charged. Without suggesting that such testimony would never be relevant to the question of specific intent, we believe that extending the concept of mental incapacity to disprove malice and specific intent required in the present case is unwarranted.

The appellant here was not limited in bringing in either medical or lay witnesses to testify to his mental condition. He and his various witnesses testified that he sustained an injury to his head, spoke incoherently, did not know what he was doing, could not tell the difference between right and wrong, and could not form the specific intent to shoot his victim. Other witnesses testified that no evidence of brain damage existed and, in their opinion, he was sane during the occurrence. The only contention on this point is that the trial judge's instruction to the jury restricted their consideration of the testimony offered to the determination of complete insanity justifying acquittal under the M'Naghten test. This argument assumes that the M'Naghten test for legal sanity as it was defined by the trial judge restricted the jury from considering

[ 228 Pa. Super. Page 95]

    whether the appellant was capable of maliciously causing harm or specifically intending it. However, legal insanity as defined in this Commonwealth already bears on these two elements. An individual without capacity to understand the nature and quality of his acts is in essence one who cannot intend specific harm or comprehend the necessary results of his wrongful activity.*fn4 Therefore, removing the restraints placed around testimony tending to show legal insanity and instructing the jury to consider the conflicting opinions of the experts on the question of intent would add nothing of substance to this appellant's case.

For the appellant to be convicted of aggravated assault and battery, proof of malice is required, but not specific intent. This Court has held that in this offense ". . . it is not required that the intent to do injury be actual or specific. Malice is not limited to a particular ill will but comprehends reckless conduct from which injury is likely to result." Commonwealth v. Lees, 199 Pa. Superior Ct. 383, 387, 185 A.2d 815, 817 (1962). Proof that appellant's mental condition was such that he was incapable of the state of mind necessary to find malice, i.e., incapable of intending harm or acting wantonly knowing that harm might result, is equivalent to proof that he cannot understand the nature and consequences of his acts.*fn5 If appellant's proof in this

[ 228 Pa. Super. Page 96]

    regard had been accepted by the fact finder, he would be entitled to complete acquittal, not merely a reduced charge, through the application of the M'Naghten standard.

Appellant argues further that in an offense in which specific intent is an element, such as assault with intent to maim, he could be found incapable of the requisite intent even though sane in the terms of the insanity defense. The facts of this case led the jury to conclude that the appellant was indeed sane. He could understand what he was doing and was capable of discerning that his acts were wrong. Capacity to understand the activity represented in this case, including leaving the scene of a fight by car and returning with a gun, and capacity to perceive the wrongfulness of shooting an individual with that gun, would seem to comprehend capacity to understand and intend the resulting harm. If the defendant did indeed perform the entire series of actions, leading up to and including the shooting, in a fog brought on by the alleged blow to his head, he is not guilty of any crime according to M'Naghten. If not, distinguishing an incapacity to intend specific harm from the proven capacity to comprehend the wrongfulness of shooting the victim is asking the jury to battle over a mental boundary so fine and irregular that it is imperceptible.

It is appellant's next contention that the trial judge erred in instructing the jury that the defense carries the burden of proving insanity by the preponderance of the evidence. Although it is admitted that no case law directly supports his position, appellant maintains that the Commonwealth should be required to prove sanity beyond a reasonable doubt. Contrary to appellant's argument, we find that recent Pennsylvania decisions on this issue indicate no change in the present law and that the trial judge accurately stated the law in his charge.

[ 228 Pa. Super. Page 97]

In Commonwealth v. Vogel, supra, individual justices of the Supreme Court discussed at length the differing views on the burden of production and the burden of persuasion in cases where an insanity defense is made. Mr. Justice, now Chief Justice, Jones, in his opinion in support of the per curiam order, clearly declined to adopt a rule placing the burden of proof beyond a reasonable doubt on the Commonwealth whenever the defense introduced evidence of insanity. Although the opinion recognized that under Pennsylvania's M'Naghten test legal insanity may bear on the criminal element of intent, insanity remains a defense which if proven avoids punishment for the defendant claiming it, and requires treatment instead of incarceration. We disagree with appellant that the fact that other views were aired in the discussion of this issue indicates a change is taking place in the present law. Later cases have interpreted Vogel as leaving the burden of proving insanity undisturbed. Commonwealth v. Pomponi, 447 Pa. 154, 284 A.2d 708 (1971); Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970).

Accordingly, we find that the trial judge's instructions relating to appellant's insanity defense correctly stated the law of this Commonwealth both in limiting the standard of legal insanity to the M'Naghten test and in placing the burden of proof by a preponderance of the evidence on the defense.

Judgment affirmed.


Judgment of sentence affirmed.

Concurring Opinion by Spaeth, J.:

I join in affirming the judgment but only because I find the trial judge's instructions to the jury in accordance with the most recent decisions of our Supreme Court. I believe that examination of those decisions will lead to the conclusion that the law on insanity is in such a state of uncertainty that the time has come to

[ 228 Pa. Super. Page 98]

    restate it. Accordingly, I respectfully express the hope that an appeal to the Supreme Court will be requested and allowed.

The Burden of Proving ...

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