No. 79 March Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Crawford County, Pennsylvania, Criminal Division, at No. 629 of 1975,
Leonard G. Ambrose, III, Erie, for appellant.
Donald E. Lewis, Asst. Dist. Atty., Meadville, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Nix, J., filed a concurring opinion. Flaherty, J., concurred in the result. Larsen, J., filed a dissenting opinion in which Eagen, C. J., and O'Brien, J., joined.
Appellant, Robert Nixon Potts, was drinking alcoholic beverages with his wife in various taverns located in the
Borough of Cambridge Springs, Pennsylvania. During the evening appellant became involved in several arguments with his wife and at one point when he saw her speaking to one of his co-workers, James Bushey, appellant physically assaulted Bushey. Appellant apparently believed that his wife was having an affair with Bushey. Appellant was overheard telling his wife that she should not return home that night because he was going to go home and load his rifle. The bartender then saw appellant strike his wife and ordered him to leave. Appellant went to his apartment which was nearby, sent the babysitter home and took his children across the hall to his sister's apartment. Appellant then loaded his rifle and returned to the bar approximately fifteen minutes after being ejected. Appellant shot his wife and was knocked unconscious in the scuffle which ensued. The wife died as a result of the wounds inflicted and appellant was charged with murder.
Appellant was subsequently convicted in a non-jury trial of murder of the first degree. Trial counsel filed post-verdict motions. Appellant then retained a new attorney (present appellate counsel), who filed amended post-verdict motions and in addition a request for an evidentiary hearing on various matters. A hearing was granted limited to one issue raised concerning trial counsel's alleged ineffectiveness. All relief was denied and this appeal followed.
Appellant now argues that the trial court erred in concluding that trial counsel was not ineffective. We agree and therefore reverse the judgment of sentence and grant a new trial.
Appellant contends that trial counsel was ineffective in failing to present available psychiatric and psychological testimony which would have been highly relevant in determining whether appellant acted with malice, thus committing murder -- or acted in the heat of passion, committing voluntary manslaughter. Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 296 (1972). Since the sole issue at trial was the appellant's state of mind at the time of the shooting, we conclude that trial counsel's failure to present the
available psychiatric and psychological testimony had no reasonable basis designed to effectuate his client's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
Between appellant's arrest and his trial, he was examined by a psychiatrist and a psychologist. Trial counsel had two relevant reports concerning appellant's state of mind. One was a psychological report by Dr. Don W. Brian, D.Ed., which stated that appellant was "a seriously, emotionally disturbed individual and possibly a borderline psychotic . . . who is . . . consumed with hostility, assaultive ideations, unstable moods. . . ." Under his specific findings, this expert reported that "the subject perceives reality inaccurately, is typically disoriented, and experiences psychotic episodes" and he portrays "assaultive tendencies and impulsive aggressiveness." The second report was made by Dr. James Markham, M.D., and while not as strongly worded, this psychiatrist did state that appellant had "some paranoid flavoring regarding the considerable difficulty centering around his wife." Dr. Markham further reported "[i]t would appear that whatever areas of weakness or difficulty he has, even if normal ...