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filed: January 17, 1986.


Appeal From Judgment of Sentence Court of Common Pleas, Criminal Division, Dauphin County No. 2199 CD 1983


John M. Glace, Assistant Public Defender, Harrisburg, for appellant.

Katherene E. Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Com., appellee.

Cavanaugh, Cercone and Lipez, JJ.

Author: Cavanaugh

[ 349 Pa. Super. Page 502]

On February 7, 1984, appellant, Larry S. Cain, was convicted of murder of the first degree in connection with the stabbing death of Mr. Louis Bean and was sentenced to life imprisonment.*fn1 Appellant was tried before the Honorable Warren G. Morgan, sitting without a jury. On appeal, as at trial, appellant concedes that he was the perpetrator of the act which caused Mr. Bean's death but maintains that the evidence was insufficient to support a verdict of first degree murder because he was acting under a "diminished capacity" which negated the specific intent required for a conviction of that offense. In the alternative, he contends that the court erred in not finding him "guilty but mentally ill" under 18 Pa.C.S. § 314.

The facts pertinent to these contentions are as follows.*fn2 At three o'clock in the morning on Sunday, October 23, 1983, the desk clerk at the Warner Hotel in Harrisburg answered a call from a resident complaining about loud noise coming from a radio or stereo in room 302. 302 was appellant's room. The clerk phoned appellant and instructed him to lower the volume. Nevertheless, at 3:30 the clerk received a second call lodging the same complaint. This time, the clerk attempted to speak with appellant in person but appellant did not answer his door. The clerk then phoned appellant's room. Still there was no answer. Several

[ 349 Pa. Super. Page 503]

    minutes later, appellant came down to the front desk. When the clerk again told him he had to lower the noise level, appellant became very belligerent, insulted the clerk, pulled a knife on him, and threatened to kill him if the clerk "didn't get off his tail." When appellant, who "kept yelling and screaming", went to a window and sat down, the clerk phoned the police. Upon their arrival, appellant did not behave in nearly so agitated a manner as he had with the clerk. The clerk refused to file a complaint at that time because his manager was not present to lend his consent. The police told appellant to return to his room. (Appellant was subsequently found guilty of simple assault in connection with this incident.) Ten minutes later, the police having departed, appellant returned to the front desk and told the clerk he would not get away with what he had done. He stormed out the door and headed across the street to the Olympian Grill restaurant. There, he encountered Louis Bean.

Bean, a patron, was sitting alone when appellant approached him and asked if Bean would buy him some coffee. Appellant had apparently known Bean only casually. Bean bought appellant a cup of coffee, but then repeatedly attempted to move away from him. Every time he moved, appellant followed. Bean went to pay his bill and, with appellant right behind him, removed a large sum of cash from his pockets. When Bean left the restaurant, appellant followed right behind him. Bean and his unwanted companion disappeared into the night.

All that subsequently transpired between the two men is not certain. However, at 5:06 A.M., a "bag lady" alerted a police officer of a problem on Court Street near Walnut. There, in a pre-dawn autumn rain, Officer Lee G. Cooper discovered the lifeless body of Louis Bean lying face down near a pool of blood. He had been stabbed to death by appellant. Thirteen different stab wounds, among other wounds, were found on the body. A can of mace was discovered under the body, and a set of keys was found at the scene. When the police later charged appellant in Bean's death and searched his room at the hotel, they

[ 349 Pa. Super. Page 504]

    detected the strong odor of mace emanating from a hat described by the investigating officer as an "apple" hat. A waitress at the Olympian Grill testified that appellant was wearing a hat which she described as an "apple" cap not long before the stabbing. Several pieces of appellant's clothing were stained with blood that matched the victim's blood type. Moreover, the keys found at the scene were appellant's. There was no evidence that Bean had been robbed.

Word of the tragedy spread that Sunday. Late in the afternoon, Chris Wright was dining at the Olympian Grill and conversing with the waitresses. He happened to mention the stabbing. Unbeknownst to Mr. Wright, the perpetrator of the stabbing was pacing behind him within earshot. Upon hearing Wright's remark, appellant became very agitated. Appellant announced to Wright, whom he had never met, that he did not like him. Mr. Wright glanced at appellant and told him he was not "too crazy about" him, either. After Wright turned back to the waitresses, appellant approached him from behind. One of the waitresses told Wright that appellant had a knife. She handed Wright a knife and fork and he turned to face appellant. Wielding the knife, Wright prepared for a confrontation. While appellant and Wright argued, the waitress phoned the police. Apparently due either to Wright's confrontational behavior or the call to the police, appellant left the restaurant and headed across the street to the Warner Hotel. After interviewing Mr. Wright at the Grill, the police found the appellant at the hotel. He was taken into custody and charged with harassment. (He was subsequently found guilty of this charge.) While in custody, he also became a suspect in Mr. Bean's death and was subsequently charged for it.


Appellant challenges his conviction of murder of the first degree because, he alleges, the Commonwealth failed to

[ 349 Pa. Super. Page 505]

    prove one of the crime's elements, specific intent, beyond a reasonable doubt. Murder of the first degree is defined by statute as follows:

"A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing." 18 Pa.C.S. § 2502(a).

"Intentional killing" is defined as:

"Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(d).

Appellant contends that because he was acting under a "diminished capacity" he lacked the specific intent to kill required for a conviction under the statute.

In pleading "diminished capacity", appellant concedes general criminal liability, Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976); Commonwealth v. Jackson, 336 Pa. Super. 609, 486 A.2d 431 (1984), and seeks a conviction of murder of the third degree.

"All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree." 18 Pa.C.S. § 2502(c).

"Specific intent to kill" is the mens rea required for first degree murder. The Commonwealth is obligated to prove premeditation and deliberation beyond a reasonable doubt to obtain a conviction. Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982); Commonwealth v. Walzack, supra; Commonwealth v. Kenny, 326 Pa. Super. 425, 474 A.2d 313 (1984). Specific intent to kill may be proven by the same common sense process of drawing inferences from the surrounding circumstances as is employed in any number of other areas of the law. "It is well settled that specific intent to kill, as well as malice, may be inferred from the use of a deadly weapon upon a vital part of the victim's body." Commonwealth v. Gardner, 490 Pa. 421, 425, 416 A.2d 1007, 1008 (1980). "This intent may be inferred from statements made by the accused and also from attendant circumstances." Commonwealth v. Davis, 331 Pa. Super. 59, 62, 479 A.2d 1077, 1079 (1984). When a

[ 349 Pa. Super. Page 506]

    defendant alleges diminished capacity, however, he attempts to demonstrate that although the surrounding circumstances may lead the trier of fact to infer that he acted with specific intent, his psychological make-up in fact prevented the formation of specific intent in the particular instance.

The defense of diminished capacity is, however, a limited one and our courts have explicitly stated that psychiatric evidence in support thereof may be admitted only if it tends to prove that appellant did not premeditate or deliberate in committing the murder. Commonwealth v. Weinstein, supra. In Commonwealth v. Weinstein, the psychiatric testimony only addressed the defendant's alleged uncontrollable sexual urge to strangle his victim.

"[D]efendant's expert was unable to speak to the issue of specific intent, recognizable by the law, and was unable to logically relate defendant's underlying disease or mental defect to his uncontrollable act. Defendant was clearly able to formulate and carry out a plan or design. He carefully arranged the victim's presence at his place of business, the victim's drugged helplessness and the presence of an accomplice, whom he asked to kill the victim, before he began the climactic act of strangulation he claims he could not control. By his own admission he arranged disposition of the body" [and] fled to escape punishment . . . . Commonwealth v. Weinstein, 499 Pa. at 118-19, 451 A.2d at 1350.

In the instant case, a defense witness, psychiatrist Dr. Edward Russek, M.D., had examined appellant numberous times and testified that appellant suffered from the psychosis of schizophrenia, a disorder of thinking. During its active phase, it is characterized by marked mental confusion, illogical thinking, delusions, and hallucinations. Moreover, appellant suffered from persecutory delusions and grandiose thinking which placed him in the paranoid subtype of schizophrenia. Appellant also suffered from a personality disorder, marked by anti-social, explosive, and highly assaultive behavior. Two letters written by another

[ 349 Pa. Super. Page 507]

    psychiatrist, Dr. Robert L. Sadoff, M.D., were proffered by the defense and admitted into evidence. The Commonwealth agreed to the admission of the letters without the appearance of the witness but did not subscribe to the content of the testimony. Dr. Sadoff had also examined appellant and his diagnosis was also chronic paranoid schizophrenia. Dr. Sadoff concluded that although appellant was mentally ill at the time of the stabbing, he appeared to know what he was doing and knew that it was wrong. The Commonwealth did not offer any expert psychiatric or psychological testimony in support of its position. However, nine lay witnesses were called to testify by the prosecutor. It is well settled in this Commonwealth that in seeking to discern the mental state of one accused of a killing, the trier of fact may hear the testimony of lay witnesses. Commonwealth v. Vogel, 468 Pa. 438, 364 A.2d 274 (1976). Those who have interacted with an accused near the time of the incident for which he is charged, those who have known him, or who frequently cross paths with him are surely qualified to testify as to his behavior as they have observed it.

Appellant argues that he suffered from a mental illness of a long-standing nature which prevented the formation of the premeditation and deliberation required for a conviction of first degree murder. He contends that paranoid chronic schizophrenia, the mental illness which afflicted him, completely disrupted his ability to correctly interpret reality, thus making deliberation and premeditation impossible. Dr. Russek testified that, although possible, it was very unlikely that appellant's psychosis was under control at the time of the stabbing. Dr. Sadoff also concluded that appellant was mentally ill at the time of the stabbing.

Appellant contends that the evidence was insufficient to support a conviction of first degree murder. The well-settled test of insufficiency is whether, accepting as true all the evidence and reasonable inferences therefrom upon which if believed could support a conviction, it is sufficient to prove beyond a reasonable doubt that the defendant is

[ 349 Pa. Super. Page 508]

    guilty of the crimes for which he was convicted. Commonwealth v. Kenny, supra. Looking at the evidence in the light most favorable to the Commonwealth, we do not believe that the trial court erred in concluding that appellant did not act with diminished capacity. In Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982) cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), and Commonwealth v. Kenny, 326 Pa. Super. 425, 474 A.2d 313 (1984), defendant attempted to show diminished capacity but the evidence proferred instead tended to prove only irresistible impulse, which Pennsylvania has rejected as a test to show diminished capacity. Commonwealth v. Weinstein, supra. In the instant case, appellant's evidence at trial showed that he felt compelled to respond to his irrational and bizarre thoughts. In Commonwealth v. Walzack, supra, Justice (now Chief Justice) Nix wrote:

"The doctrines of diminished capacity and irresistible impulse involve entirely distinct considerations. Irresistible impulse is a test which is broader than the M'Naghten test. Under the irresistible impulse test a person may avoid criminal responsibility even though he is capable of distinguishing between right and wrong, and is fully aware of the nature and quality of his act, provided he establishes that he was unable to refrain from acting."

Commonwealth v. Walzack, 468 Pa. at 220-21, 360 A.2d at 919. Dr. Russek also testified that appellant had suffered from an anti-social hybrid-personality disorder. "Personality disorders such as a diagnosed schizoid personality are irrelevant to a finding of first degree ...

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