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decided: December 23, 1983.


No. 13 W.D. Appeal Dkt. 1983, Appeal from the Order of the Superior Court of July 30, 1982, at No. 718 Pittsburgh 1981, vacating judgment of sentence and remanding for a new trial of May 27, 1981, at No. 528 Criminal 1979 of the Court of Common Pleas of Mercer County, Criminal Div., Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., files a dissenting opinion.

Author: Mcdermott

[ 503 Pa. Page 191]


Robert D. McCann was found guilty of aggravated assault after a jury trial in the Court of Common Pleas of Mercer County. His post trial motions were denied, and a judgment of sentence was imposed of not less than five (5) years nor more than ten (10) years. On appeal, the Superior Court found that McCann's trial attorney was ineffective,

[ 503 Pa. Page 192]

    vacated the sentence, and remanded the case for a new trial.*fn1 The Commonwealth petitioned this Court for allowance of appeal, which was granted. We now reverse the order of the Superior Court and reinstate the judgment of sentence.

The underlying facts of this case are as follows. On December 11, 1979, Mrs. Wilma Cooper was walking home when she was accosted by Robert McCann. As a result of the attack the victim suffered some twenty (20) stab wounds to all parts of her body. Shortly after this incident, McCann was picked up by the police near the scene of the attack. He was complaining of a knife wound to the leg, which he claimed was sustained in the course of aiding a woman who was being attacked. To prove his point, McCann took the police to the site where Mrs. Cooper was lying in a pool of blood. The police, after summoning an ambulance for the victim, transported McCann to the hospital. While there, the officer in charge of the investigation was handed a note from one of the ambulance attendants. The note gave a description of the assailant, as told to the writer by the victim. The description fit Mr. McCann. As a result the police located the accused, advised him of his rights, and shortly thereafter, secured a taped confession. Subsequently the victim selected McCann's photograph out of a photo array.

Prior to trial, appellant's counsel raised the defense of insanity. Consequently, the trial court directed that the appellant be referred to Warren State Hospital for observation. Test results submitted to the court indicated that the appellant was competent to stand trial.

At trial the only issue was whether Robert McCann was sane at the time of the stabbing. The jury heard testimony by both the defense and the Commonwealth concerning McCann's penchant for violence and sexual perversion, and his condition at the time of the attack. Dr. Walter S. Finken, Director of Forensic Unit of Warren State Hospital, testifying for the defense, opined:

[ 503 Pa. Page 193]

    at the time of the actual thing (stabbing), I think he (McCann) flipped into some sort of a brief psychotic state overwhelmed by intense emotion, and I think that these horribly destructive rape fantasies, rape murder fantasies he had been having, suddenly for some reason, instead of ending in flight, flipped over into action, and during this actual time I think that he was suspended. I don't think he knew anything except the frenzy he was in; and as such during that actual time, . . . I will postulate that I think that his understanding of right and wrong was suspended, and I don't think he knew there was such a thing as right and wrong.

(N.T. at 242-43.)

To rebut this insanity defense the Commonwealth presented its own psychiatrist, a Dr. Phillip J. Resnick, who had reviewed McCann's records and interviewed the accused for about three (3) hours prior to preparing his report. In testifying from his report Dr. Resnick agreed that the accused was a sexual sadist but he did not agree that such disorder was "something which causes someone to be out of touch with reality" (N.T. at 275); nor did he believe that his putative mental disease precluded him "from knowing the wrongfulness of the act." (N.T. at 278.) However, Dr. Resnick did testify that the disorder (sexual sadism) suffered by the accused "ma[de] him extremely dangerous to society" and he described McCann "as being a highly dangerous person for the indefinite future." (N.T. at 281.)

At the conclusion of Dr. Resnick's testimony, the jury was charged that there were three (3) possible verdicts in the case: guilty, not guilty, or not guilty by reason of insanity. Since McCann's counsel chose not to request a specific charge, the jury was not instructed as to the consequences of a verdict of not guilty by reason of insanity. Thereafter, the jury rejected McCann's insanity defense and found him guilty of aggravated assault.

In post trial motions McCann's counsel raised the issue of whether the court erred in not charging the jury on the possible psychiatric ...

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