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decided: July 13, 1984.


No. 80-3-712, Appeal from the Judgment of Sentence of Philadelphia Court of Common Pleas, Trial Division, Criminal Section, Entered August 25, 1980, as to Bills of Information Nos. 1023 and 1026 of June Term, 1978


Lewis S. Small, Philadelphia (Court-appointed), for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., joins in this opinion and files a concurring opinion. Nix, C.j., files a concurring opinion. McDermott, J., files a concurring opinion.

Author: Hutchinson

[ 505 Pa. Page 308]


On May 31, 1978, Marvin Garcia bludgeoned Emilie Schmid to death with a meathook and, following the killing,

[ 505 Pa. Page 309]

    took money and other property from the victim's grocery store and home. A jury found Garcia guilty of felony murder and robbery. Following the denial of post-verdict motions, Common Pleas imposed a sentence of life imprisonment and a concurrent sentence of ten to twenty years for Garcia's second degree murder and robbery convictions, respectively. This is Garcia's direct appeal from these sentences. Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S. ยง 722(1), right abolished by Act of September 23, 1980, P.L. 686, No. 137. Appellant's arguments in support of his contention that a new trial is warranted are meritless. Accordingly, we affirm the judgment of sentence.

At trial, Garcia conceded that he killed Mrs. Schmid, who was seventy-two years old at the time of her death, and that he took her money and other valuables. However, throughout these proceedings, Garcia's counsel has maintained that Garcia, who was seventeen years old at the time of the incident in question, and who suffers from organic brain damage and mild retardation, is, due to his diminished capacity, incapable of forming an intent to kill or commit robbery. Garcia's defense at trial was that he was guilty only of third degree murder and theft.

Appellant first contends that the trial court erred in excluding testimony of a clinical psychologist offered by the defense to establish that he lacked the specific intent to commit robbery at, or about, the time of the murder. Appellant asserts that he should have been given the opportunity to establish diminished capacity sufficient to negate the requisite intent to commit robbery as a defense against the robbery charge and against application of the felony murder doctrine.

To date, our Court has deemed psychiatric testimony admissible only to negate specific intent to commit first degree murder. See Commonwealth v. Terry, 501 Pa. 626, 631, 462 A.2d 676, 679 (1983); Commonwealth v. Weinstein,

[ 505 Pa. Page 310499]

Pa. 106, 113, 451 A.2d 1344, 1347 (1982); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976).*fn1 In order to establish murder in the first degree, the Commonwealth must prove that the actor specifically intended to kill which, in turn, is shown by proving premeditation and deliberation. Commonwealth v. Weinstein, 499 Pa. at 115, 451 A.2d at 1348.

In the instant case, the trial court permitted the appellant's expert, a clinical psychologist, to testify extensively regarding his judgment that Garcia had not formed the specific intent to kill Mrs. Schmid. N.T. 1.679-680, 1.699, 1.753-754.*fn2 The jury obviously believed the testimony of Garcia's expert on this issue since they found him guilty of second, rather than first, degree murder.

[ 505 Pa. Page 311]

The trial court correctly sustained the Commonwealth's objection to the following question posed to appellant's expert during direct examination:

Q. All right. Now, Dr. Cooke, were you able to form an opinion with a reasonable degree of scientific certainty as to whether or not Marvin Garcia had an intent to steal anything from Mrs. Schmid prior to or before committing this homicide?

N.T. 1.681. Common Pleas correctly ruled this psychiatric testimony inadmissible. Throughout these proceedings appellant has argued that this testimony is relevant to negate what he calls the specific intent to rob which intent he says, in this case, triggers the operation of the felony murder rule. Precisely, appellant argues that he did not form a specific intent to rob Mrs. Schmid either before or during her murder and that his theft of her property was merely an "afterthought." Consequently, appellant argues that there was no felony murder.

Proper psychiatric testimony is admissible only to negate the specific intent required to establish first degree murder. See Commonwealth v. Weinstein, supra. Therefore, the determination of whether Garcia ever formed an intent to rob, and if so, when he formed such intent, was required to be made on the basis of the factual circumstances surrounding the criminal episode as developed by demonstrative evidence and testimony other than psychiatric expert testimony.*fn3

[ 505 Pa. Page 313]

Appellant next contends that the trial court erred in admitting into evidence three photographs which, he claims, were inflammatory and of little probative value. All of the disputed photographs are in black and white. The first, Exhibit C-4, depicts a meathook resting on top of a milk crate. A large pool of blood on the floor to the right of the crate is visible. The second photograph, Exhibit C-11, shows the bloodied body of the murder victim and the third, ...

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