NO. 2332 PHILADELPHIA, 1981, Appeal from the PCHA Order of August 20, 1981 in the Court of Common Pleas of Philadelphia County, Criminal at No. 1749-51 April Term 1975.
Paul Gordon Hughes, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Brosky and Beck, JJ.
[ 321 Pa. Super. Page 125]
This appeal is a claim of ineffectiveness of trial counsel brought under the Post Conviction Hearing Act, 19 P.S. 1180-1 et seq. Appellant Otis R. Owens charges that his trial counsel was ineffective for failing to retain a psychiatrist or psychologist regarding the possibility of a plea of not guilty by reason of insanity or a defense of diminished mental capacity. He also claims his counsel was ineffective because of his lack of preparation for trial, and his failure to petition to withdraw a guilty plea.
Owens was arrested in April 1975 for the murder of the Reverend John Wesley McDonald and the shooting of his wife. Owens pleaded guilty to third degree murder and aggravated assault on September 16, 1975. He was sentenced
[ 321 Pa. Super. Page 126]
to seven to fifteen years for murder and five years for aggravated assault, to run consecutively. A petition to reconsider sentence was denied. No petition to withdraw the guilty plea was filed, and no direct appeal was taken. A hearing on the P.C.H.A. petition was held in June 1980 and this appeal followed a denial of relief. Owens is now represented by new counsel.
The circumstances of Owens' arrest were these: Owens met Paul McDonald, the son of the Reverend and Mrs. McDonald, in order to arrange the purchase of a television set. Owens agreed to buy the set and stated he would return shortly with the money. When Owens returned, he learned from the young McDonald that the set was already sold. Owens thereupon threatened to kill Paul McDonald; followed him to his home; and ultimately shot both of Paul's parents, killing his father and seriously wounding his mother. Police, who arrived on the scene almost immediately, found spent ammunition upon Owens' person.
Prior to trial, Owens told his counsel that he had suffered a head injury several years earlier and that surgery had been performed to remove a blood clot. Counsel then consulted the neurosurgeon who performed the operation, Robert P. Kamrin, M.D., to find out whether Owens' violent outbursts and uncontrolled behavior would support an insanity defense. In Dr. Kamrin's view Owens was capable of distinguishing right from wrong. On the basis of an exchange of letters with Dr. Kamrin, counsel concluded that he did not have a foundation for an insanity defense, and decided not to prepare such a defense. N.T.P.C.H.A. 43-47.
The issue here is whether trial counsel was ineffective for failing to pursue the matter of Owens' mental state with a psychologist or psychiatrist.
We begin by noting that this is not a challenge to expert opinion at trial. It is a charge of not procuring the proper expert in order to prepare a defense in Owens' behalf. Dr. Kamrin, who was consulted during discovery, was an eminently suitable physician to consult on the ...