Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Jones, Asst. Dist. Attys., Pittsburgh, for appellant.
Samuel A. Vitaro, Ronald A. Berlin, Welsh S. White, Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen and Nix, JJ., concur in the result.
This is an appeal*fn1 by the Commonwealth from an order of the court of common pleas granting appellee's motion for new trial. Appellee, Charles Hale, was convicted after a non-jury trial of murder in the first degree. Judgment of sentence of life imprisonment was imposed.
Appellee filed a motion for new trial and arrest of judgment alleging that the verdict was against the weight of the evidence and that certain psychiatric testimony was erroneously allowed in evidence. The court of common pleas ruled that there was sufficient evidence admitted at trial to sustain the conviction, but granted the motion for new trial because the trial court erred by admitting the psychiatric evidence which was obtained in violation of appellee's fifth amendment right against self-incrimination.
The trial court found that Dr. Bowman, the psychiatrist who had examined appellee, had told appellee that the results of the psychiatric examination would be used only to aid the sentencing judge if appellee was found guilty. Dr. Bowman testified at trial however, that appellee was sane at the time he shot the victim. The trial court found that Dr. Bowman did not give appellee proper warnings before the interview and that the Commonwealth did not sustain its burden of showing that appellee waived his fifth amendment right or his right to have counsel present while being questioned.
In Commonwealth v. Pomponi, 447 Pa. 154, 162, 284 A.2d 708, 712 (1970), we held that "the fifth amendment protects a defendant from being compelled to answer questions asked of him by the psychiatrist for the
Commonwealth" when the psychiatric examination is for the purpose of determining defendant's guilt or innocence.*fn2 See also Commonwealth v. Byrd, 421 Pa. 513, 219 A.2d 293, cert. denied, 385 U.S. 886, 87 S.Ct. 181, 17 L.Ed.2d 114 (1966); Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1968); Commonwealth v. Musto, 348 Pa. 300, 35 A.2d 307 (1944). Thus, before answering questions which may be used to incriminate him the person whom the psychiatrist questions should be warned of his rights. Cf. Commonwealth ex rel. Finken v. Roop, 233 Pa. Super. 722, 339 A.2d 764 (1975). See also Commonwealth v. Glenn, 459 Pa. 545, 330 A.2d 535 (1974). As the trial court found, because of the failure to warn appellee of his rights and because the psychiatrist misled appellee concerning how the examination would be used, the Commonwealth did not sustain its burden of showing that appellee made a knowing, voluntary and intelligent waiver of his rights. See Commonwealth v. Jones, 457 Pa. 423, 434, 322 A.2d 119, 126 (1974); Commonwealth v. Singleton, 439 Pa. 185, 266 A.2d 753 (1970).
The Commonwealth does not now argue that the psychiatrist's testimony was admissible. It argues that receiving his testimony was harmless error. In order for an error of constitutional dimension to be found harmless, the Commonwealth must establish beyond a reasonable doubt that the error did not contribute to the judgment. Commonwealth v. Bullard, 465 Pa. 341, 350 A.2d 797 (1976); Commonwealth v. Davis, 452 Pa. ...