*1 fees requested counsel interpretation support I, only incurred in for those and costs are Cianfrani being for counsel fees and costs request reference to a Having determined that Common- for relief.5 prayer the demurrer to the cause correctly sustained wealth Court fees asserted, claim for counsel any it follows of action action, the cause of Pa.C.S.A. along falls with and costs § for award of costs and 1726(2) (establishing guideline cases, party). to a only prevailing but counsel fees certain Court affirmed. of Commonwealth Order HUTCHINSON, J., concurs in the result. Pennsylvania, Appellee,
COMMONWEALTH GARCIA, Appellant. Marvin A. Pennsylvania. Supreme Court 26, 1984. Submitted Jan. July 1984.
Decided minimum, concisely upon the facts pleading must set forth As a 5. Lexington Millwork Line Lumber & cause of action is based. which a Publishing Corp., Pennsylvania Co. v. 1019(a). support No. No material facts Pa.R.C.P. petition. paragraphs alleged of Cianfrani’s are in the such a claim Therefore, request petition only interpreted as a for can be incurred in the instant action. fees and costs counsel *4 Small, appel- for Philadelphia (Court-appointed), S. Lewis lant. Div., Lawler, Chief, Atty., Asst. Dist. Appeals B.
Robert for appellee. C.J., LARSEN, FLAHERTY, McDER- NIX,
Before PAPADAKOS, HUTCHINSON, ZAPPALA and JJ. MOTT, OF THE COURT OPINION HUTCHINSON, Justice. Emilie 31, 1978, bludgeoned Marvin Garcia May
On and, following killing, meathook to death with a Schmid
309 took and other from money property the victim’s grocery and A store home. found Garcia guilty felony robbery. murder and the denial of Following post-verdict motions, imposed Common Pleas of life imprison- sentence ment and a concurrent sentence of ten to twenty years for convictions, degree Garcia’s second murder and robbery respectively. appeal This is Garcia’s direct from these 9, 1976, 586, 142, sentences. Act of P.L. No. July Pa.C.S. § 722(1),right 23, 1980, abolished Act of by September P.L. 686, No. 137. Appellant’s arguments support of his contention that a new trial is warranted are meritless. we affirm the Accordingly, judgment of sentence. trial, Schmid, At Garcia conceded that he killed Mrs. who seventy-two years death, was old at the time of her and that money However, he took her and other through- valuables. proceedings, out these Garcia’s counsel has maintained that Garcia, who was seventeen old years at time incident in question, and who suffers from organic brain damage retardation, is, and mild due to his diminished capacity, kill incapable forming an intent to or commit robbery. Garcia’s defense at guilty trial was that he was of third only degree murder and theft.
Appellant first contends that the trial court erred in excluding testimony psychologist of a clinical offered defense to establish that he lacked the intent to at, robbery about, commit or the time of the murder. Appellant asserts that he given oppor- should have been tunity establish diminished capacity negate sufficient to requisite against to commit as a defense robbery charge robbery against application of the felony murder doctrine. date,
To our Court has deemed psychiatric testimony admissible only negate specific intent to commit first degree murder. 626, See Commonwealth v. Terry, (1983); 462 A.2d Commonwealth v. Wein-
stein,
Com
*6
Walzack,
v.
(1976).1
monwealth
In instant to testify extensively a expert, psychologist, lant’s clinical formed his that Garcia had not the regarding judgment 1.679-680, 1.699, to kill N.T. intent Mrs. Schmid. specific obviously testimony The the of 1.753-754.2 believed guilty found him of they on this issue since expert Garcia’s first, second, murder. degree rather than incorrectly concurring separate opinion Mr. Justice McDermott 1. In a Weinstein, implies v. that Commonwealth degree capacity" to a as a defense first introduced "diminished fact, availability charge. of that Weinstein restricted the murder defense which was first announced Pa. expert degree In Walzack, v. in Commonwealth (1976). Specifically, Weinstein held the A.2d 914 testimony capacity defense to first on a diminished allowable speak cognitive processes of the deliberation murder had to to irrelevant, impulse rejected, premeditation as irresistible and testimony negate commit that crime. to intent to response following Specifically, appellant’s expert in to the testified 2. during question put to direct examination: him Q. Now, doctor, you opinion to an with a reason- were able reach certainty degree to whether or not Marvin able of as scientific specific Mrs. possessed intent to kill Schmid? Garcia a following response: expert gave The the was, first, My to hurt her as he had opinion that his intent A. been is hurt, screaming that he did to her but not and second silence kill intend to her. improperly We held Technically, question framed. have that: was Pennsylvania [Pjsychiatric testimony competent on the issue of affecting specific cognitive speaks if it to mental disorders intent to kill necessary specific intent. Where to formulate functions not, and hence inadmissible. ... it does it is irrelevant Weinstein, at 1347. at question, opinion an as to whether posed, as did not ask for kill, specific to capacity Garcia had the mental to entertain type testimony should have been general. This is the possessed jury. or Garcia the intent to presented to the Whether not question jury, particular was for the at murder in kill the time alone, to decide. correctly sustained the Commonwealth’s The trial court following posed appellant’s question to the objection direct examination: expert during Now, Cooke, Dr. to form Q. right. you All were able an of scientific opinion degree certainty with a reasonable or not Marvin had an intent to steal to whether Garcia prior committing from Mrs. to or before anything Schmid this homicide? correctly psychiatric
N.T. 1.681. Pleas ruled this Common Throughout proceedings ap- inadmissible. these testimony pellant argued testimony negate has that this is relevant he intent he says, what calls the intent to rob which case, murder triggers operation felony this *7 rule. that he did not form a Precisely, appellant argues specific during intent to Mrs. either or rob Schmid before her murder and that his theft of her was property merely “afterthought.” Consequently, appellant argues an that there felony was no murder. psychiatric
Proper testimony only is admissible to negate required degree intent to establish first Weinstein, murder. See Commonwealth v. supra. There fore, the determination of whether Garcia ever formed an rob, so, intent, if intent to and when he formed such was required to be made on the the factual circumstanc basis of surrounding episode es the criminal as demon developed by strative evidence and other than ex testimony psychiatric pert testimony.3 concurring opinion disagrees
3. In his Mr. Chief Nix Justice with this holding. argues testimony psychiatric He that should be admissible negate "specific respect any requiring to intent" with to crime such an expression element. Our Crimes Code does not include either the However, "specific” “general” expression or intent. we have used the "specific culpable required intent kill” state to to refer to the mental degree for first murder which is defined in the Crimes Code as an 2502(a). killing.” "intentional See The term “intentional 18 Pa.C.S. § turn, killing” purposes degree is defined for of first murder as a “willful, 2502(d). killing. premeditated” § deliberate and 18 Pa.C.S. expression "specific The Crimes Code does not use the intent” to culpable robbery describe the mental state included as an element of Instead, any word or other crime. where the "intent” describes the offense, culpable mental state for an element of an it is defined as the object engage nature or to to in conduct of that "conscious" actor's cause such argues 302(b)(1). appellant In this case 18 Pa.C.S. § result. incapa- testimony he was psychiatric is admissible to show forming "intent” or "conscious desire” to steal. ble of general argument question whether the defense involves the of That recognized capacity, in this ly diminished heretofore denominated charge, degree only a first murder as available on Commonwealth Walzack, robbery. to supra, should be extended open appellant he admitted the theft to because That issue is not doing robbery admitted necessary component so of which is a intent, i.e., proper “specific” to withhold the precisely the same another, robbery requires. Pa.C.S. § § See 18 ty which Furthermore, says posed he question at trial which and raised this 3921. § issue, pose plainly supra, is intended to see at before the homicide. In must be formulated that such intent defense asserting defense, apparently our decision in appellant relies on this we Legg, in which inapplicable the actor felony-murder where doctrine held that the kills Mr. Chief Justice underlying felony. As forming prior the intent to commit notes, holding departure from represented a Nix this However, the issue of whether the been criticized. prior law and has the law of this Legg continue to be should defense announced therefore, and, will appeal we before us on this is not Commonwealth not consider it here. testimony Thus, psychiatric appellant seek to introduce did not forming to steal. In incapable the conscious desire show that he is fact, with his defense at any would be irreconcilable such contention trial, i.e., only degree and theft. guilty of third murder he is facts, “intent” between the Considering well as the difference these as in Section degree the “intent” defined required murder and for first require "intent" all other crimes the Crimes Code for 302 of offense, this case as a not inclined to use of an we are the element vehicle to degree beyond first capacity defense expand diminished so, Indeed, limited defense we to do the so-called murder. were *8 to all those capacity become an absolute defense would diminished crimes which include states of particular definition mental in their Crimes Code’ssection culpability set forth in our greater than those 302(c). abo 18 Pa.C.S. culpability. Pa.C.S. See general § See 18 on intoxication, 308, voluntary when rele- permits evidence of § degree. vant, higher Section a lower only from a to reduce murder 118, Graves, A.2d 661 461 Pa. 334 v. 308 limits Commonwealth broadly relevant under Penal held such evidence which more conscious desire. generally negate in the sense of Code requires 302(b)(l)(i) such conscious Crimes Code now Section of our crimes, including variety of of serious a mental element a desire as felonies, murder, robbery, burglary e.g. law of the old common most and that defense of intoxication Although larceny. was called form of theft which entirely analogous of diminished to that is not Graves, id., dissenting at (see Eagen, 461 Pa. in capacity Mr. Justice 128, 666) of a mental they the common element A.2d at share 334 cognitive at the con- prevents formation of intent impairment which Thus, a legislative response to Graves indicates level. scious
313 next Appellant contends the trial court in erred admitting into evidence three which, claims, he photographs inflammatory were and of probative little All value. of the disputed photographs are black first, and white. The C-4, depicts Exhibit a resting meathook on top a milk crate. A large pool blood on the right floor to the of the crate is visible. The second photograph, C-ll, Exhibit shows the bloodied body of the murder third, victim and the C-28, Exhibit represents drag transversing marks a pool of on blood the floor of the grocery store where the murder occurred. into evidence of photographs depict admission the homicide or location
ing
corpse
victim
scene of the crime lies within the sound discretion of the
Hudson, 489 Pa.
See Commonwealth v.
620,
judge.
trial
Commonwealth v. Gil
630,
1381,
(1980);
414 A.2d
1386
man,
Common
145, 152,
335,
485
401 A.2d
339
Pa.
Gidaro,
v.
wealth
472, 474,
(1950).
359,
70 A.2d
360
A
is
photograph
judged
inflammatory
which is
not
admissi
understanding
if “it is
and can assist the
ble
relevant
Gilman,
the facts.” Commonwealth v.
153,
wealth v. 273, 281, 608, 612, denied, cert. U.S. S.Ct. 37 L.Ed.2d meathook,
The photograph weap of the the murder Miller, See Commonwealth v. on, is not inflammatory. policy of caution towards the extension of such defenses to all so- *9 "specific called crimes of intent.” Superior (1979). Moreover, Ct. it had
probative
Among
value.
other
things,
photograph was
jury
relevant to indicate to the
the brutality of the defend
ant’s
supports
attack which
an inference of specific kill,
an element of murder in the first degree. See
McCutchen,
Commonwealth v.
The trial court also correctly C-ll, ruled that victim, of the murder photograph was admissible. While appellant states that depicts C-ll victim “with her dress up,” the fact that the trial judge is ordered the nude portion of Mrs. Schmid’s out. body gored head, blocked Her badly also, is not shown. offered properly this photograph as evidence of the ferocity appellant’s attack prove which tended to premeditation and delibera McCutchen, tion. N.T. 1.94. See Commonwealth v. su pra. addition, In the trial found judge C-ll relevant be cause it shows the location of the body at the crime scene. Moreover, N.T. 1.97. the record shows that the trial judge took care to exclude highly inflammatory photographs of Mrs. Schmid. Specifically, the judge excluded C-8 which depicts injuries severe to Mrs. face Schmid’s and head. N.T. 1.101. Accordingly, the evidentiary value of this ex hibit warranted its admission evidence notwithstanding its potentially inflammatory nature.
Appellant’s to the objection photograph drag of the is, likewise, marks unfounded. The in photograph not Sullivan, See Commonwealth v. supra. flammatory. Ex hibit C-28 spot appellant shows which the dragged the victim’s body following the attack. It supports Commonwealth’s contention that dragged Garcia Mrs. Schmid to an area of the store where she not was visible to anyone proceeded and then to steal her property. Undoubt edly, piece this of demonstrative evidence was admissible to aid the reconstructing the factual circumstances surrounding the murder.
315 asserts Finally, appellant that he was denied a fair trial prosecutorial First, on account of misconduct. points he prosecutor’s attempt the to introduce into evidence his in juvenile arrest records an effort to discredit his mother testified that her son who had never before in been trouble the judge with law. The trial ruled the records inadmissi- Nevertheless, ble. the district attorney continued to ques- appellant’s tion mother concerning the events culminating in her son’s arrest. the Eventually, judge trial sustained an objection by defense counsel to the line of questioning whereupon prosecutor stated, the in presence of the I jury: “My hands are tied. no questions.” have further N.T. 1.637. Defense counsel objected and moved for a mistrial on the ground that the prosecutor attempted to indicate to members of the information concerning being defendant was withheld from them.4 N.T. 1.638.
Next, appellant a challenges remark made by the prosecutor during defense counsel’s direct examination of a character witness. When asked in people what the commu said nity about following murder, Garcia the witness replied: “[t]hey didn’t believe happened.” what had prosecutor objected this was unresponsive answer add “I ing: am sure the Schmids didn’t believe what happened either, your Honor.” N.T. 1.649. Appellant maintains that prosecutor unfairly attempted to prejudice the jury against him.5
The prosecutor’s
comments
in both instances
and,
reason,
were irrelevant
for that
improper. However,
they
prejudicial.
course,
were not
Of
“every unwise or
4.
claims,
addition,
Appellant
in
attorney
that the district
"threw her
air,”
However,
apparently,
file in the
judge
frustration.
the trial
stated
any
that he did not
slip op.
observe
such act. Common Pleas
at
25.
judge
objection
5. The trial
prosecu-
sustained defense counsel’s
to the
and,
sponte,
tor’s comment
sua
a
issued
curative instruction. How-
ever,
and,
defense counsel
consequently,
did not move for a mistrial
1118(b);
this issue has been waived. Pa.R.Crim.P.
Commonwealth v.
Jones,
162, 166,
501 Pa.
460 A.2d
741
Commonwealth v.
Brown,
512, 517,
(1976).
467 Pa.
396
made in the
remark
course of a trial
a
judge,
irrelevant
witness, or counsel does not
of a
compel
granting
new
Goosby,
609, 611,
trial.”
Rolison,
quoted
A.2d
denied,
cert.
261, 273,
509, 514,
A.2d
434 U.S.
[Cjomments by attorney the Commonwealth’s do not con- stitute reversible error unless the “unavoidable effect of such comments would be to prejudice jury, forming *11 minds fixed and the hostility their bias toward defendant weigh so that could not the-evidence they objectively and Cliff, Commonwealth v. Van render a true verdict.” 576, 582, (1979) (citations 397 A.2d omit- ted). Anderson,
Commonwealth v. 275, 282, (1983). comments do not a require above-cited Nevertheless, trial under this test. we take this oppor- new tunity public prosecutors to remind of their responsibility act the propriety, against within bounds both insure for conduct to insure discipline against having unethical and strong convictions on otherwise evidence set aside because reviewing the court cannot determine a beyond reasonable that, case, given prosecutor’s unnecessary doubt a the statements did not affect the improper jury’s guilty In Re Winship, verdict. 397 U.S. 90 S.Ct. Story, L.Ed.2d 368 Lastly, appellant improper characterizes the dis trict of a attorney’s questioning expert wit ness, Appellant although Dr. Kenneth Kool. claims that requested the Commonwealth never Dr. Kool to examine nevertheless, appellant, prosecutor, asked this witness he given opportunity whether was an to examine Garcia. Appellant argues jury probably inferred from this However, that he refused the examination. question judge trial sustained defense counsel’s to this objection question responded. before Dr. Kool It is difficult to see how the could have any drawn inferences whatever question Therefore, from the unanswered alone. the ques- prejudicial tion had no effect.
Judgment of sentence affirmed.
FLAHERTY, J., joins opinion this and files a concur- ring opinion.
NIX, C.J., concurring files a opinion.
McDERMOTT,J., files a concurring opinion. FLAHERTY, Justice, concurring.
I join opinion of the Court authored by Mr. Justice Hutchinson, but write I separately inasmuch as view admonition of expressed counsel majority great as a deal milder than the Indeed, circumstances warrant. inas- represents much as this our third such experience with this attorney, suggests counsel’s behavior a violation of Discipli- nary 7-106(A), Rule provides in pertinent part:
A lawyer shall not disregard ruling ... a of a tribunal made in the course of proceeding, but may he take appropriate steps good faith to test the validity of such ruling.
Moreover, I take this opportunity to reassert the position set forth in my authored concurring and dissenting opinion filed Waters, 100-101, A.2d 319-320 that any inquiry into whether the homicide was perpetrated “in furtherance of” the underly- ing felony cannot advance the felony-murder doctrine. long as the energy initiating the felonious undertak- “[S]o ing continues to pervade the atmosphere felonious any ... engendered result by that felonious energy is within the purview the murder felony doctrine.” Id.
NIX, Justice, Chief concurring.
I agree that the trial ruling court’s the sustaining objec- tion to question the posed appellant’s to expert witness during direct examination was I correct. am also of the the of the argument relating proof to appellant’s
view that robbery, intent to commit the under of a specific absence case, rejected. of this must How- the facts be undisputed ever, Mr. Justice Hutchinson’s strenuously disagree I with only is admissible psychiatric testimony conclusion that bald to establish first required the intent negate specific to evidence, proper If the defense had offered degree murder. otherwise, negate or to the psychiatric either that should underlying felony, evidence required by the their assessment the jury to the for have been submitted of the murder applicability felony of the determination the entire trial Additionally, viewing the case. to principle the attorney of the for agree record I behavior not the conclusion that does warrant trial must be and a new judgment of sentence vacated awarded.
I. not to defense counsel was specific question from his medical expert to an answer permitted receive witness was: an Now, Cooke, able to form
Q. you All Dr. were right. certainty of scientific opinion degree with a reasonable had an intent steal or not Marvin Garcia whether committing to or prior from Mrs. Schmid before anything this homicide? formed an intent to steal Marvin had
Whether
Garcia
province
exclusively
from
victim was
within
his
role was to advise
expert
to decide. The
witness’
jury
have affected
may
disorder
any psychiatric
such an intention. Thus
to form
appellant’s capacity
of the mental
phrased,
predicate
after
question properly
established,
elicited from the
had
would have
problem
been
would
expert
appellant’s
medical
witness whether
condition
for
forming
required
the intention
prevented
have
him from
*13
offense. Commonwealth v. Wal
of
the commission
zack, 468 Pa.
see Commonwealth
210,
(1976);
II.
A.
appellant
argues that he was denied the opportunity
prove
to
that he did
possess
not
the intent necessary to be
convicted of robbery,
which
felony
underlies his felony
murder conviction.1 While murder of the
degree
second
is
not one which necessarily has a requisite specific intent, a
specific intent may nonetheless be
required
a
element where
the underlying felony requires proof of such an intent. See
Waters,
Commonwealth v.
85,
491 Pa.
(1980);
A.2d 312
Allen,
Commonwealth v.
475 Pa.
(1977);
B. noted, As previously appellant should per- have been proper mitted to establish by evidence that he did not have degree 1. Second murder is defined in 18 Pa.C.S. § 2502 as follows: (b) degree. Murder of the second criminal homicide consti- —A degree tutes murder of the second when it is committed while engaged defendant was principal accomplice as a or an in the perpetration felony. of a Robbery is defined in 18 § Pa.C.S. 3701 as follows: (a)(1) if, person guilty A robbery is of committing in the course theft, he: (v) physically property takes or person removes from the by slight. another force however (2) An act shall be committing deemed "in the course of a theft" if attempt it occurs in flight an attempt commit theft or in after the added.) (Emphasis or commission. taking Theft disposition unlawful or is defined in 18 Pa.C.S. § 3921 as: (a) property. person Movable guilty unlawfully of theft if he —A takes, over, or exercises unlawful control property movable deprive another (Emphasis added.) with intent him thereof. *14 320 required to form the intent to deprive capacity
the mental I. part See robbery. crime of by the capaci- that if he did have the also asserts even Appellant the intent, the decision to take requisite form the ty to “afterthought.” argument This was an property victim’s not, formed. It is that intention was upon focuses when question capacity a of the suggested by appellant, implicitly form the intent. to that it does not expressed my view previously
I have
of the victim
property
the intent to take the
matter when
the
force
occurs;
felony
deadly
it
a
murder when
becomes
v. Butch
Commonwealth
the theft.
accomplish
is used to
see Commonwealth v.
er, 451 Pa.
(1973);
359,
150
304 A.2d
Tomlinson, 446 Pa.
Common
241,
(1971);
III.
testi-
psychiatric
Moreover,
accept
I cannot
the view
intent of
negate specific
permitted
should not be
mony
contrary conclusion in Common-
the Court reached a
2.
I realize that
(1980). After careful
Legg,
In this court Weinstein testimony rule to allow psychiatric of the M’Naghten Weinstein, 1. Commonwealth v.
evidence diminished capacity prosecutions. murder The majority did not define psychiatric what evidence is They may excused, admissible. be for its neologistic while patois is delight of sophomores, its definition varies most among often, its learned practitioners, think, too some to fit the miscreant at hand. Neither did majority qualification specify of those who proffer evidence. it is Presumably, left to the occasion and fashion. II, In Weinstein my opinion memorandum I faulted the use of psychiatric except evidence as an insanity defense under M’Naghten.
Whatever the consequence may following be a verdict of not insanity, consequences do invalidate the legitimate defense of insanity. Insanity, is as it among must be people, civilized a defense excuse must, and for an act. It b¿ however, pleaded be basis its defined. The long standing M’Naghten rule, the law in Pennsylvania, sets the exactly: standard act, *16 the time of committing of the the party
[A]t labouring reason, accused was under such a defect from mind, disease of the not to as the nature and know quality doing, act he was or if he it know that did. he did not doing wrong. know what he was was Roberts, 428, 437 A.2d v. Woodhouse, 401 Queen 249-250, quoting M’Naghten, Cl. & Fin. Eng.Rep.
I concur with the majority holding that psychiatric evidence, be, it may whatever inadmissible dilute the rob, I would any offense, hold for including murder.
I gamut also believe when the full psychological II spread records, excuses are homicide Weinstein across one will become with the once fashionable theories of Lomb- roso and physiognomists other and head bump counters.