Commonwealth v. Potts

406 A.2d 1007, 486 Pa. 509, 1979 Pa. LEXIS 691

• Court: Supreme Court of Pennsylvania
• Decided: October 1, 1979
• Docket: 79
• Status: Published

Opinions

OPINION

MANDERINO, Justice.

Appellant, Robert Nixon Potts, was drinking alcoholic beverages with his wife in various taverns located in the Borough of Cambridge Springs, Pennsylvania. During the evening appellant became involved in several arguments with his wife and at one point when he saw her speaking to one of his co-workers, James Bushey, appellant physically assaulted Bushey. Appellant apparently believed that his wife was having an affair with Bushey. Appellant was overheard telling his wife that she should not return home that night because he was going to go home and load his rifle. The bartender then saw appellant strike his wife and ordered him to leave. Appellant went to his apartment which was nearby, sent the babysitter home and took his children across the hall to his sister’s apartment. Appellant then loaded his rifle and returned to the bar approximately fifteen minutes after being ejected. Appellant shot his wife and was knocked unconscious in the scuffle which ensued. The wife died as a result of the wounds inflicted and appellant was charged with murder.

Appellant was subsequently convicted in a nonjury trial of murder of the first degree. Trial counsel filed post-verdict motions. Appellant then retained a new attorney (present appellate counsel), who filed amended post-verdict motions and in addition a request for an evidentiary hearing on various matters. A hearing was granted limited to one issue raised concerning trial counsel’s alleged ineffectiveness. All relief was denied and this appeal followed.

Appellant now argues that the trial court erred in concluding that trial counsel was not ineffective. We agree and therefore reverse the judgment of sentence and grant a new trial.

Appellant contends that trial counsel was ineffective in failing to present available psychiatric and psychological testimony which would have been highly relevant in determining whether appellant acted with malice, thus committing murder — or acted in the heat of passion, committing voluntary manslaughter. Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 296 (1972). Since the sole issue at trial was the appellant’s state of mind at the time of the shooting, we conclude that trial counsel’s failure to present the available psychiatric and psychological testimony had no reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Between appellant’s arrest and his trial, he was examined by a psychiatrist and a psychologist. Trial counsel had two relevant reports concerning appellant’s state of mind. One was a psychological report by Dr. Don W. Brian, D.Ed., which stated that appellant was “a seriously, emotionally disturbed individual and possibly a borderline psychotic . who is . consumed with hostility, assaultive ideations, unstable moods. . . .” Under his specific findings, this expert reported that “the subject perceives reality inaccurately, is typically disoriented, and experiences psychotic episodes” and he portrays “assaultive tendencies and impulsive aggressiveness.” The second report was made by Dr. James Markham, M.D., and while not as strongly worded, this psychiatrist did state that appellant had “some paranoid, flavoring regarding the considerable difficulty centering around his wife.” Dr. Markham further reported “[i]t would appear that whatever areas of weakness or difficulty he has, even if normal in degree under ordinary circumstances, would become exaggerated and more problem to him under times of stress and perhaps particularly under the influence of alcohol with stress and alcohol perhaps combining to form the worst of all possible conditions.”

These reports contained important psychiatric and psychological evidence and were certainly relevant as to appellant’s state of mind. The prosecutor proceeded on a theory that appellant acted with malice and given the above quoted expert reports, the theory that appellant acted without malice and in the heat of passion certainly had arguable merit. As we stated in Commonwealth v. McCusker:

“Surely the admission of relevant and probative psychiatric evidence would have aided the jury in resolving those conflicting claims. The admissibility of relevant psychiatric testimony on the issue of whether defendant acted in the heat of passion does not, of course, intrude upon the jury’s traditional function of determining for itself the credibility and weight which it will accord that testimony.”

448 Pa. at 391, 292 A.2d at 291.

The evidence available to defense counsel in this case was “evidence of probative value vital to a determination of defendant’s state of mind.” Id. (Emphasis added.) Although in McCusker it was the trial court which excluded the psychiatric testimony from the factfinder, we find it no less prejudicial to an accused when trial counsel fails to introduce evidence relevant to a crucial issue unless the failure is based upon reasonable trial strategy. In cases such as appellant’s, the factfinder is required to determine a complex and crucial question concerning the accused’s state of mind. Before the factfinder makes such a decision, the accused is entitled to have all relevant information before the factfinder. Factfinders today, be they judge or jury, are sufficiently sophisticated to evaluate psychiatric and psychological testimony and determine the extent to which such testimony contributes, in a particular case, to the object of all trials — the quest for truth and justice. In the interest of reaching a just decision, the factfinder should have such relevant information before it.

When the only issue is appellant’s state of mind, trial counsel’s decision not to present relevant psychiatric and psychological testimony which may be determinative of the issue can be as damaging to the truthfinding process as the failure in other contexts to present the testimony of an available eyewitness, alibi witness, or other key witness. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).

We are unable to perceive any reasonable basis designed to effectuate appellant’s interest for trial counsel’s course of action. Appellee contends that the course of action was a logical trial strategy. That strategy according to appellee was to rely on proof concerning intoxication to negate the existence of malice and not to rely on proof concerning heat of passion to negate malice. That argument might be persuasive if evidence concerning intoxication were incompatible with evidence concerning heat of passion. Each approach could lead to a verdict of less than murder of the first degree.

We conclude that trial counsel was ineffective for failing to present the available psychiatric and psychological testimony.

Appellant raises another issue concerning Pa.R.Crim.P. 1100. After reviewing this argument we hold that appellant’s claim is meritless and the trial court did not err in denying his motion to dismiss based upon Rule 1100.

Appellant further raises the issue of whether the trial court erred in denying an evidentiary hearing on the issue that his waiver of a jury trial was not voluntary and trial counsel was ineffective in advising him on this waiver. We need not address this issue because of our disposition to grant appellant a new trial.

Judgment of sentence reversed and a new trial awarded.

NIX, J., filed a concurring opinion. FLAHERTY, J., concurred in the result. LARSEN, J., filed a dissenting opinion in which EAGEN, C. J., and O’BRIEN, J., joined.