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decided: October 26, 1982.


No. 80-3-596, Appeal from Order entered June 3, 1980 Court of Common Pleas of Philadelphia Denying Petition for Relief Under the Post-Conviction Hearing Act as of No. 1591 December Term, 1967.


Malcolm W. Berkowitz, Philadelphia (court-appointed), for appellant.

Robert B. Lawler, Chief, Appeals Div., Mark Gurevitz, Philadelphia, for appellee.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty and Hutchinson, JJ. McDermott, J., took no part in the consideration of the merits of this case, however, he files a memorandum opinion. Larsen, J., files a concurring opinion.

Author: Hutchinson

[ 499 Pa. Page 109]


In May of 1968 appellant, Stephen Z. Weinstein, while represented by two attorneys, entered a plea of guilty to an indictment charging him with the murder of John W. Green, a freshman at the University of Pennsylvania, recently arrived from his home in the midwest. Appellant was sentenced by a three judge court to life imprisonment for first degree murder.*fn1 On direct appeal in 1971, appellant

[ 499 Pa. Page 110]

    cited as error, at his hearing on the degree of guilt, the rejection by the court of psychiatric testimony as to appellant's irresistible impulse. Appellant has now raised the same issue seeking relief under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq., asserting that he has been denied a constitutional right which requires retroactive application.*fn2 He appeals to us from Philadelphia Common Pleas' denial of that relief. We are of the opinion the particular psychiatric testimony as to irresistible impulse was not relevant to the issue of specific intent to kill. We therefore affirm the lower court's denial of relief.

The facts in this case were summarized in Justice Bell's opinion supporting affirmance on direct appeal in 1971.*fn3

Appellant first met his victim, Green, on October 16, 1967 when Green came into his Walnut Street store to purchase a pipe. Attracted to Green by his tight-fitting levis,

[ 499 Pa. Page 111]

    appellant engaged Green in a conversation about boats, in which they had a mutual interest. Appellant then invited Green to visit his tobacco shop in the Philadelphia 1700 Complex, where he could see the boats on the Delaware River. Green accepted and a meeting was arranged for the following Sunday, October 22.

Before the Sunday meeting, appellant emptied into a small jar the contents of some ten sleeping capsules, intending to use them on Green. When Green came to appellant's Walnut Street shop on Sunday, appellant offered to get him a hamburger, and the unsuspecting Green accepted appellant's hospitality. Appellant sprinkled the powder on the hamburger and gave it to Green. Appellant and Green then took a taxicab to appellant's Philadelphia 1700 Complex shop. By the time they reached the shop, Green complained of drowsiness, and within an hour he fell to the floor unconscious. Shortly thereafter, appellant and a young friend, James Hammell, to whom appellant had previously telephoned, attempted to revive Green, but to no avail. According to appellant's confession, after Hammell left his shop, he was suddenly filled with a strange sexual urge.

Appellant then strangled Green, first with a piece of rope and then with his bare hands, and this killed him. Shortly afterward, appellant, with the assistance of Hammell and some other boys, attempted to dispose of Green's body. Unable to bury the body in a wooded area near Reading, Pennsylvania, appellant and Hammell eventually placed the body in a trunk, filled it with stones, and dumped it into the Delaware River near the Philadelphia 1700 Complex. Appellant subsequently fled to New York City where he was eventually apprehended by the New York police.

Commonwealth v. Weinstein, 442 Pa. 70, 75-76, 274 A.2d 182, 186-87 (1971) (footnotes omitted) (emphasis in original).

Appellant relies on Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976), sustaining, on grounds of relevance, the admissibility of psychiatric testimony to the effect that a

[ 499 Pa. Page 112]

    pre-frontal lobotomy negated the specific intent to kill required by our statutes for first degree murder. Since the psychiatric testimony was first offered in Weinstein at the degree of guilt hearing solely to negate appellant's intent to kill and since appellant argues that its exclusion was erroneous, the testimony must, perforce, be judged on its relevance to that issue. After the Philadelphia Court of Common Pleas had found, without this testimony, that appellant was guilty of first degree murder, the psychiatrist's testimony was admitted as it related to sentencing. The parties in this P.C.H.A. proceeding have agreed that the testimony so received was of the same nature the expert would have given at the degree of guilt hearing. N.T., P.C.H.A. Hearing, at 6-7. We are, therefore, able to examine it in detail to determine its relevancy for the offered purpose. Upon such examination we find that defendant's psychiatrist was unable to give an opinion speaking to the presence or absence of specific intent, but only to the issue of irresistible impulse arising from defendant's uncontrollable sexual urge to continue strangling his ...

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