Norman C. Henss, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., B. H. Levintow, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. O'Brien, J., concurs in the result. Eagen, J., dissents. Nix, J., did not participate in the decision of this case.
Appellant, Arnold Hamilton, was convicted by a jury in Philadelphia County of murder in the first degree, carrying a concealed weapon, and unlawfully carrying a firearm without a license. After the denial of post-trial motions for a new trial and for arrest of judgment, he was sentenced to life imprisonment on the murder charge. It is from this judgment of sentence that he appeals.
The facts of the case may be briefly stated. On December 29, 1967, appellant visited the maternity ward of the Woman's Medicine College Hospital in Philadelphia, where his wife, Cynthia Hamilton, was a patient following the delivery of a baby three days previously. There were several other visitors and patients in the room, including Mrs. Hamilton's step-father. The appellant sat beside his wife's bed for a period of time. At approximately 8:00 p. m., Mrs. Hamilton received a telephone call. As she turned to answer the 'phone, appellant shot her in the back of the head. After firing two more shots into her body, he turned the gun on himself, shooting himself twice in the chest. The wounds inflicted upon his wife proved fatal; from those inflicted upon himself the appellant recovered. At trial, the appellant did not contest the fact that he did shoot and kill his wife. His defense was that he was insane at the time of the commission of the act, and competent evidence was introduced to that effect.
Appellant asserts eight trial errors in support of reversal and the grant of a new trial. Four of these assignments
were not raised at trial, and will therefore not be considered on this appeal.*fn1 Commonwealth v. Little, 449 Pa. 28, 32, 295 A.2d 287 (1972); Commonwealth v. Rogers, 440 Pa. 598, 601, 269 A.2d 449 (1970). Although it is urged that these errors, especially those involved in the charge to the jury, were "basic and fundamental", see e. g., Commonwealth v. Jennings, 442 Pa. 18, 24-26, 274 A.2d 767 (1971), this Court has recently discarded that exception to the general rule that an appellate court will not reverse on a point where no exception or only a general exception was taken to the charge, or on a ground not raised in or by the court below. Commonwealth v. Clair, Pa., 326 A.2d 272 (decided Oct. 1, 1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 [decided July 1, 1974].*fn2 It is, therefore, unnecessary for us to address ourselves to the question of whether the errors, if such they were, were of the sort to qualify under the "basic and fundamental" approach. Our review of the assignments properly before the Court satisfies us that no error of law or abuse of discretion was made at the trial of this case, and that the judgment should be affirmed.
In support of his insanity defense, appellant presented, in addition to his own testimony and that of lay witnesses, the testimony of a qualified psychiatrist, Dr. Theodore Kushner. Dr. Kushner gave it as his opinion that, at the time of the shooting, the appellant "had a
defect of reasoning, due to a disease of the mind" that rendered him "unable to appreciate the nature and quality of his act". The doctor was then asked whether he had an opinion as to whether Hamilton "was so entirely perverted as rendered the commission of the deed an overwhelming necessity when he shot and killed his wife". Objection to this question was sustained, and appellant urges this ruling as prejudicial error. Immediately thereafter, however, the witness was allowed to respond to a question whether appellant was "suffering a stopgap of his intelligent control and his will, and it rendered it impossible to do otherwise but yield thereto". The answer given was "yes". The doctor then added, "I think Arnold Hamilton had no choice because of his mental illness." If the exclusion of an answer to the first question was error, it would seem to have been cured by the admission of an answer to the second. Moreover, the court affirmed appellant's point for ...