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COMMONWEALTH PENNSYLVANIA v. DICK LAVERE AHEARN (08/04/86)

submitted: August 4, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
DICK LAVERE AHEARN, APPELLANT



Appeal from the Order entered January 21, 1986 denying the petition under the PCHA in the Court of Common Pleas of Centre County, Criminal Division, No. 5 OCTOBER 1963

COUNSEL

James N. Bryant, State College, for appellant.

Ross H. Cooper, Assistant District Attorney, Bellefonte, for Com., appellee.

Tamilia, Johnson and Hester, JJ. Johnson, J., concurs in the result.

Author: Tamilia

[ 357 Pa. Super. Page 406]

Appellant was found guilty of first degree murder on January 9, 1964 and subsequently sentenced to life imprisonment. In Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966), judgment of sentence was affirmed on direct appeal with the Pennsylvania Supreme Court agreeing with the trial court that psychiatric testimony concerning the defense of irresistible impulse was inadmissible. A PCHA petition filed in 1970 was dismissed; the dismissal was affirmed by Pennsylvania Supreme Court in Commonwealth v. Ahearn, 447 Pa. 585, 287 A.2d 901 (1972), as was a subsequent PCHA petition in 1980, from which allowance of appeal to the Supreme Court was denied.

In 1985, the present PCHA petition was filed raising the issue of the retroactivity of the rule of law established in Commonwealth v. Walzak, 468 Pa. 210, 360 A.2d 914 (1976), which admitted into evidence, in a prosecution for murder, psychiatric testimony on the mental capacity to form the specific intent necessary for first degree murder, thereby reducing first degree murder to second degree murder.*fn1 Following a hearing the lower court denied appellant's petition and this appeal followed.

Appellant contends the court erred in refusing to apply the ruling in Walzak, supra, retroactively, claiming he should be granted a new trial. We do not agree.

Appellant acknowledges the difficulty of his position in citing those United States Supreme Court cases which hold that retroactivity applies only to those cases on direct appeal and does not concern itself with the substantive, procedural, constitutional or non-constitutional nature of the case. Hankerson v. North Carolina, 432 U.S. 233, 246, 97

[ 357 Pa. Super. Page 407]

S.Ct. 2339, 2347, 55 L.Ed.2d 306 (1977); Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). In Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983), the Pennsylvania Supreme Court, likewise, held that retroactivity is applicable only in those cases on direct appeal in which the question is properly preserved at all stages of adjudication up to and including any on direct appeal. This is not to be interpreted to mean that once a decision has been made at the final stage of appeal, as here, that that decision is subject to review, forevermore, should the law be changed. In Commonwealth v. Hines, 341 Pa. Super. 456, 491 A.2d 907 (1985), in which the retroactivity was sought of liberalization of the law engendered by Commonwealth v. McCutcheon, 463 Pa. 90, 343 A.2d 669 (1975), requiring an interested adult to be present during interrogation of a juvenile, when the issue was not preserved on appeal, this Court held that "it seems fair in striking the balance between individual rights and the administration of criminal justice to limit retroactive applications of the case" citing Commonwealth v. Willman, 434 Pa. 489, at 492, 255 A.2d 534 at 535 (1969). Hines also took note that the McCutcheon rule had been applied to cases, on appeal, in which the issue had been preserved. Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1976). Here, the appellant is not on direct appeal nor is it an appeal nunc pro tunc. Proceeding under the PCHA does not revive issues which have been raised and disposed of on appeal, or which have not been raised because they were not in the contemplation of the law at the time, and arise subsequently as an evolutionary development in the legal process. Hines, supra; Willman, supra.

Even should retroactive effect be given to Walzak, it would be of no avail to appellant since appellant's defense and theory of the case was based on "irresistible impulse" which then, as now, was not recognized as a defense in Pennsylvania. See Commonwealth v. Tyrrell, 405 Pa. 210, 174 A.2d 852 (1961); ...


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