decided: October 7, 1977.
COMMONWEALTH OF PENNSYLVANIA
DALE M. ROSH, JR., APPELLANT
John H. Chronister, Public Defender, Harrisburg, for appellant.
Donald L. Reihart, Dist. Atty., York, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Roberts and Manderino, JJ., concur in result.
[ 474 Pa. Page 172]
OPINION OF THE COURT
The main contention*fn1 of appellant is that this is "a clear case of irresistible impulse" and that this Court should depart from its old*fn2 and recent*fn3 views with respect to that defense. It is uncontroverted that the appellant shot and killed his wife and also her friend who had tried to stop him from entering a room occupied by his wife.
The contention need not be considered because a review of the record does not reveal this as a case of irresistible impulse but rather a matter of deliberative choice by the appellant. This appears from the testimony of appellant's psychologist, who responded to appellant's counsel as follows:
"Q. When you describe him having a conversation with his wife then going out to the car, thinking about the rifle apparently, apparently already provoked, disturbed yet he stops and puts oil in the car --
A. He's going back and forth, 'What should I do' and getting oil is an innocuous activity, gives him time to think.
Q. It's an effort to avoid going further?
A. Or at least evaluate what he should do and coming up with the bad choice. That's the way I recall his relating it to me." (N.T. 71).
The real purpose of the psychologist's testimony was to establish that intense passion caused the killings. We agree with the court below that neither murder conviction should be reduced to voluntary manslaughter.