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decided: February 17, 1987.


Appeal from Judgment of Sentence of Court of Common Pleas of Montgomery County, Criminal Division, No. 1563-79, Entered November 14, 1984.


Leigh P. Narducci, for appellant.

Thomas E. Waters, Jr., Dist. Atty., Ronald T. Williamson, Sp. Asst. Dist. Atty., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a concurring opinion. Zappala, J., concurs in the result.

Author: Hutchinson

[ 513 Pa. Page 388]


For the second time,*fn1 Benjamin Terry appeals as of right directly from Montgomery County Common Pleas a jury-imposed sentence of death*fn2 along with convictions of assault by a life prisoner,*fn3 aggravated assault,*fn4 and recklessly endangering another person.*fn5

Appellant asks us to consider an unforeseen and unfortunate apparent conflict between a recent double jeopardy

[ 513 Pa. Page 389]

    decision of this Court in homicide cases generally, Commonwealth v. Beck, 502 Pa. 78, 464 A.2d 316 (1983),*fn6 and a decision of the United States Supreme Court requiring the presentation of lesser included homicides reasonably implicated by the evidence to juries in capital cases. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). This conflict poses the key issue in the present case.

Relying on our holding in Commonwealth v. Beck, supra, the trial judge granted the Commonwealth's motion in limine and refused to instruct the jury that it could find appellant guilty of third degree murder or voluntary manslaughter as well as first degree murder. The trial judge felt this refusal was dictated by the Commonwealth v. Beck majority's holding that a superfluous jury verdict of not guilty of lesser included homicides, accompanying a guilty verdict on murder precludes re-trial on the lesser included homicides if the murder conviction is vacated. The Beck majority relied on double jeopardy and the statute set out at 18 Pa.C.S. ยง 109.*fn7 It also held these rights non-waivable. In this case, the jury at appellant's first trial returned just such a verdict.*fn8 Thus, under the rationale of

[ 513 Pa. Page 390]

In addition, our death penalty statute, unlike Alabama's, requires the same jury which declared a defendant guilty of a capital offense to consciously choose the death sentence after considering and weighing all aggravating and mitigating factors. Finally, any error in not giving the requested instructions at the guilt phase was harmless beyond a reasonable doubt. In sentencing, the jury had before it all the evidence of diminished capacity which appellant could have properly offered to reduce the degree of this homicide and was instructed on the propriety of mitigating appellant's punishment if it believed his evidence of diminished capacity. It, nevertheless, chose death over life. We therefore affirm the conviction and the death sentence imposed.*fn10

In March, 1979, appellant was serving a life sentence for arson and murder in Graterford State Prison. During an exercise period in the prison's courtyard on March 29, he hid a baseball bat in his trouser leg. As appellant returned to Block C, Captain Felix Mokychic, a prison guard, was checking the prisoners' passes at the entrance. Appellant removed the bat and attacked the guard when his back was turned. He clubbed the victim's head repeatedly; Mokychic died as a result. Appellant was immediately taken into custody. He later admitted to the state police that he hid the bat in his pants and began looking for someone to kill. He chose Captain Mokychic with whom he had a prior conflict. Appellant believed that this would enhance his standing among the prisoners.

I. Failure to Instruct Jury on Lesser Included Offenses

Beck v. Alabama dealt with an Alabama statute which defined capital murder as "[r]obbery or attempts thereof

[ 513 Pa. Page 392]

    when the victim is intentionally killed by the defendant."*fn11 If convicted, the death penalty was mandatory, and the jury was statutorily precluded from considering lesser included offenses.*fn12 Only two options were open to the jury, convict the defendant and impose the mandatory death sentence or acquit him entirely. If the defendant was convicted, the trial judge was required to hold a hearing and receive evidence of aggravating and mitigating circumstances. After that hearing, the judge had power to vacate the death penalty and instead sentence the defendant to life imprisonment without parole.

Consistent with its other Eighth Amendment death penalty cases, the United States Supreme Court in Beck v. Alabama, supra, held that this all or nothing approach introduced an unacceptable risk that the jury would return an unreliable verdict of guilt. 447 U.S. at 637, 100 S.Ct. at 2389. The Court observed that if the evidence showed the defendant guilty of some lesser offense, but not capital murder, the jury might choose to convict him of the capital offense rather than let him escape scot free. Id. at 642-43, 100 S.Ct. at 2392. The United States Supreme Court held that this element of unreliability in the guilt determination of a capital case so increased the risk of unwarranted imposition of the death penalty that the Alabama statute was unconstitutional.*fn13 Id. at 643, 100 S.Ct. at 2392.

On this record, however, we do not find that the death sentence imposed on appellant violates Beck v. Alabama. The evidence presented by appellant to show "diminished capacity" was insufficient to meet his burden of production and implicate the issue. This is so because the evidence was either irrelevant under Pennsylvania substantive law or

[ 513 Pa. Page 393]

    failed to establish legal cause. Thus, no charge on the lesser included offenses was warranted by the evidence. A review of the development of our law relating to the admission of expert psychological and psychiatric testimony on the issue of a defendant's ability to form the requisite mens rea is necessary to understand these deficiencies.

Prior to the decision of this Court in Walzack, supra, Pennsylvania had precluded the use of expert psychiatric testimony on the issue of a criminal defendant's mens rea. E.g., Commonwealth v. Tomlinson, 446 Pa. 241, 284 A.2d 687 (1971); Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561 (1966). Walzack held that expert evidence which is relevant to a defendant's mens rea is admissible in Pennsylvania. 468 Pa. at 218-20, 360 A.2d 918-19. We held its admission is required if the defendant is not to be deprived of relevant evidence on a constituent element of the crime of murder. Id., 468 Pa. at 223, 360 A.2d at 920-21. As shown subsequently by Weinstein and Zettlemoyer, Walzack did not make all expert psychiatric testimony on the issues of sanity, malice, specific and general intent admissible or relevant. Zettlemoyer, supra 500 Pa. at 28, 454 A.2d at 943; Weinstein, supra 499 Pa. at 112-13, 451 A.2d at 1347. Such testimony must be definite and specific and address a recognized defense under Pennsylvania substantive law. Nor did these cases change the rule that expert testimony offered to prove a medico-legal fact, such as causation, is incompetent and inadmissible unless it speaks to more than a mere possibility.

We have held that expert psychiatric testimony is relevant and admissible to show a defendant's inability to premeditate. This so-called "diminished capacity" defense is available in Pennsylvania only on murder charges. Commonwealth v. Garcia, 505 Pa. 304, 311, 479 A.2d 473, 477 (1984); Commonwealth v. Walzack, supra 468 Pa. at 214, 360 A.2d at 916. It is a limited one. Commonwealth v. Weinstein, supra; Commonwealth v. Zettlemoyer, supra. As we stated in Weinstein:

[ 513 Pa. Page 394]

[P]sychiatric testimony relevant to the cognitive functions of deliberation and premeditation is competent on the issue of specific intent to kill. Thus psychiatric testimony is competent in Pennsylvania on the issue of specific intent to kill if it speaks to mental disorders affecting the cognitive functions necessary to formulate a specific intent. Where, as here, it does not, it is irrelevant and hence inadmissible.

499 Pa. at 114, 451 A.2d at 1347. Such evidence is irrelevant in Pennsylvania because our substantive law does not recognize the so-called "diminished capacity" defense to first degree murder unless the mental illness involved affects cognitive functions to an extent which precludes deliberation and premeditation.

The evidence in this case does not implicate reduced capacity or an unreasonable but sincere belief that self-defense was necessary.*fn14

At trial, appellant presented the testimony of two qualified experts, Dr. Gerald Cooke, a psychologist,*fn15 and

[ 513 Pa. Page 395]

Dr. Glenn Glass, a psychiatrist. Based on examination of appellant and review of his records, Dr. Cooke said appellant suffered from a dyssocial personality with paranoid hysterical and explosive features and organic brain syndrome with epileptic seizures. He also found one episode of acute psychotic break in appellant's past: appellant's belief that guards were injecting poison into his ankles and thus crippling him. N.T. Vol. III at 104-05. Dr. Cooke then testified to a reasonable psychological certainty that appellant lacked the capacity to premeditate and deliberate on the day he attacked Capt. Mokychic because of his "mental illness." N.T. Vol. III at 123. He then explained his answer.

I base that, first of all, . . . [on] the description of the personality and organic brain damage that I have already given. In addition, it's my opinion that the resentment and rage that he felt build up. . . brought him to the point where he did make a decision and that decision was that he would protect himself and not let himself be beaten again. So that he decided to protect himself, and if somebody tried to hurt him, he would hurt them.

However, what I believe happened at that moment, then, within that context, is that when the captain grabbed him, he went into a rage; it was immediate, it was reactive, it was based on an emotional response. He didn't stop and deliberate and think and form the intent. He reacted. And it's on that basis that I reached that opinion.

N.T. Vol. III at 123-24 (emphasis supplied). This testimony fails to meet the Weinstein standard for admissibility. Dr. Cooke's explanation directly advances impulsive rage as negating premeditation. We have definitively rejected this concept, not only in Weinstein, supra 499 Pa. at 115, 451 A.2d at 1348, but also in Walzack, supra 468 Pa. at 214, 360 A.2d at ...

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