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decided: January 29, 1976.



Herman M. Rodgers, Rodgers, Marks & Perfilio, Sharon, for appellant.

Joseph J. Nelson, Dist. Atty., Robert F. Banks, Asst. Dist. Atty., Mercer, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, and Manderino, JJ. Eagen, J., concurs in the result. Manderino, J., filed a dissenting opinion joined by Roberts, J.

Author: Nix

[ 466 Pa. Page 228]


Appellant Roy O'Searo was indicted for murder and involuntary manslaughter. He was tried before a jury and found guilty of murder in the first degree. After timely motions for a new trial and arrest of judgment were denied and he was sentenced, appellant filed this appeal pursuant to the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202(1).

The death in the instant case resulted from a shooting which occurred in a public restaurant during the course of an argument between appellant, the decedent and a third individual. Appellant, who had some time earlier undergone serious open-heart surgery, maintained that he produced the weapon in an effort to stop the struggle that had begun. It was his contention that after he drew the revolver, someone grabbed his hand causing it to discharge accidentally.

The first assignment of error is the trial court's exclusion of the testimony of the proffered defense witness Frank J. Pizzat, a clinical psychologist. Appellant argues in his brief, "Dr. Pizzat was offered to substantiate and corroborate the defendant's contention that he harbored no ill will towards the victim, that he had no intention of harming the victim, that the defendant during the scuffle became fearful of a heart attack and drew the gun in order to get the people away from him." It is asserted that the reasoning of Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972) forces the conclusion that this testimony should have been admitted and its rejection justifies an award of a new trial.

[ 466 Pa. Page 229]

Unlike McCusker, supra, the testimony sought to be admitted did not touch upon the psychological likelihood of appellant's behavior under a given stimulus. Nor, did the evidence address the capacity to form the specific intent to kill. Cf. Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975); Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974). It is clear as noted by the learned court below that the only purpose of this offer was to buttress the credibility of the defendant as to his version of the critical events.

Expert testimony is permitted only as an aid to the jury when the subject matter is distinctly related to a science, skill, or occupation beyond the knowledge or experience of the average layman. McCormick, Handbook on the Law of Evidence, § 13, (2nd ed. 1972); Commonwealth v. Newsome, 462 Pa. 106, 337 A.2d 904 (Filed 1975); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971). Where the issue involves a matter of common knowledge, expert testimony is inadmissible. Collins v. Zediker, 421 Pa. 52, 218 A.2d 776 (1966).

Traditionally, we have recognized not only the jury's ability to determine the credibility of the witnesses but also we have placed this determination within their sole province. Commonwealth v. Hampton, 462 Pa. 322, 341 A.2d 101 (1975); Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). To permit psychological testimony for this purpose would be an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment. Our research has failed to reveal any authority for this proposition nor has appellant been able to supply either authority for or persuasive arguments in support of such a position. We do not believe that a

[ 466 Pa. Page 230]

    concept as fundamental to our law as trial by jury of one's peers can be cavalierly abandoned. We hold that the learned trial court was correct in excluding the proffered evidence.

Appellant's next assignment of error below is that the Commonwealth withheld evidence favorable to appellant in violation of the mandate of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1962). Appellant asked the Commonwealth to produce the coat it seized from him on the night of the incident. The Commonwealth failed to do this. Appellant maintains this was prejudicial because there was contradictory testimony from Commonwealth witnesses regarding how appellant secured the gun in a pocket of the coat. We fail to see, however, how this evidence is favorable or material to appellant's defense of accident. Appellant took the stand and admitted that he had the gun in his hand during the struggle and that it was only later in the struggle that someone grabbed his hand causing the gun to discharge. Thus, how appellant had the gun secured in a pocket of his coat prior to his taking it out during the affray, had no significant relevance on the issue as to the cause of the weapon's discharge since it was never suggested that the gun was accidentally fired as it was being removed from the coat. As emphasized in the United States Supreme Court's decision in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972),

"The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence. These are the standards

[ 466 Pa. Page 231]

    by which the prosecution's conduct in Moore's case is to be measured."

408 U.S. at 794-95, 92 S.Ct. at 2568.

On the facts of this record we do not believe that this evidence was material to the guilt of appellant or to his defense of accident. Consequently, the Commonwealth's failure to produce the coat did not violate the mandate of Brady v. Maryland, supra.

Appellant next contends that the lower court erred in charging the jury that on recall in the closing of his case the appellant for the first time testified that someone had grabbed his hand. The trial was recessed over the weekend and when the defense counsel continued its case on Monday morning defense counsel asked:

"Mr. O'Searo, when you were last on the stand I neglected to ask you what had caused that gun to be discharged, will you tell the jury.

Yes. The last time I saw the gun, it was right here on Jake's shoulder. Something grabbed my hand and pulled it and that's -- the next thing I know a shot went off."

Although the challenged statement in the charge could possibly have been interpreted by the jury as an indication that appellant had created a fabrication over the weekend, no exception was taken to this portion of the judge's charge. Although appellant concedes that no exception was taken to this charge he claims it was fundamental error and, thus, should be considered on appeal. This argument, however, ignores our recent decisions which have firmly rejected the doctrine of basic and fundamental error. Commonwealth v. Belcher, 462 Pa. 206, 340 A.2d 435 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974); Pa.R.Crim.P. 1119(b), 19 P.S.Appendix. Since no exception

[ 466 Pa. Page 232]

    was taken to the charge, we are precluded from ...

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