Opinion
Per Curiam,
The Court being equally divided, the judgment of sentence is affirmed.
Opinion by
Mr. Chief Justice Bell
in Support op Affirmance, May 9, 1969:
Defendant-appellant was convicted of murder in the first degree and sentenced to life imprisonment. On this appeal he raises three questions which will be discussed after a brief summary of the facts, considering as we must, the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth: Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301; Commonwealth v. Burns, 409 Pa. 619, 187 A. 2d 552; Commonwealth v. Kravitz, 400 Pa. 198, 161 A. 2d 861; Commonwealth v. Melton, 406 Pa. 343, 178 A. 2d 728.
Defendant killed his wife in their apartment on Boas Street in Harrisburg, either after dinner on May 13th or in the early morning hours on May 14th, 1966. They had been having marital trouble for several years, each blaming it on the other. Defendant left their home and went to Phoenix, Arizona, to obtain employment. While in Phoenix, he heard that his wife had sought to have him arrested for desertion. As soon as he could borrow sufficient funds, he returned to Har[108] risburg, and for the next several weeks attempted a reconciliation.
On the night of the murder, defendant went to his wife’s apartment. They had dinner together, which she prepared, discussed their marital problems, and agreed upon a reconciliation. Then they went to bed and had sexual intercourse. After that, she got up and got some soft drinks. Upon her return, she asked defendant for some money and he gave her $40, which she took and hid. She then returned to their bed, whereupon, according to defendant’s testimony, he “went wild.” He reached for a screwdriver which was on a night stand next to their bed and admitted that he stabbed her three times with the screwdriver—once in the lung, once near her rib, and one superficial wound. When she was dying she said, “Leon, I love you.” He testified that he could not recall when she said that, or whether “it could have been my own mind telling me this.” Although her death was caused by strangulation and not by the stabbing, defendant testified that he does not remember strangling his wife at all.*
The next thing defendant remembered after picking up the screwdriver was standing in the hallway and seeing his wife lying dead on the bed. He then wrote a note saying he loved her and cut his arms in three places. He testified that he then returned to their bed and hugged his dead wife.
He next recalls standing in the rain at the corner of Third and Foster Streets, Harrisburg. He hailed a cab which took him to the home of Mr. Archie Moore, [109] his minister, who lived in Middletown, Pennsylvania. He arrived at his minister’s home at approximately 4:30 A.M. on May 14, 1966 and told Mr. Moore that he had killed his wife, whereupon Mr. Moore called the police.
Defendant further testified at his trial that he loved his wife very much and did not intend to kill her.
Patricia A. Metz, a witness for the Commonwealth, testified that in February, 1965, defendant told her “One of these days I am going to kill her [the victim], I am going to kill her.” She further testified that approximately two to four weeks before the killing defendant said to her, “Pat, ... I am going to get rid of her and make her so that no other guy would ever want her.”
Mrs. Marie Weber, who is the victim’s aunt, and who had raised her from childhood, testified that defendant made threats to kill his wife just a month before the killing. She further testified that the defendant, who was living at her home in Phoenix in Arizona, stated “If he didn’t get the money from his wife, he said he was going back east and kill her.” Mrs. Weber and her husband then took defendant to the Catholic Church in Phoenix to attempt to obtain money for him to return to Harrisburg. When defendant was not able to obtain the money from the Catholic Church, “. . . then he said ‘I’m going back east to kill my wife. I’m going back and finish her off.’ ”
Defendant contends that all this evidence was insufficient to support a verdict of first-degree murder. Of course, this contention is ridiculous.
Defendant’s two other contentions are that the trial Judge committed reversible error when he (1) sustained three challenges for cause made by the Assistant District Attorney and (2) refused to permit a psy[110] chiatrist to testify as to defendant’s state of mind at the time of the victim’s death.
Challenges for Cause
A jury of 63 prospective jurors and nine prospective alternate jurors was impaneled for this case. Appellant contends that a new trial should be granted because the trial Judge improperly exercised or abused his discretion in sustaining the District Attorney’s challenges of three prospective jurors for cause. The Court has a wide discretion in such cases, which will be reversed only for palpable abuse or error of law. Commonwealth v. Gelfi, 282 Pa. 434, 438, 128 Atl. 77; Commonwealth v. McGrew, 375 Pa. 518, 526, 100 A. 2d 467; Commonwealth v. Pasco, 332 Pa. 439, 445, 2 A. 2d 736; Commonwealth v. Fletcher, 387 Pa. 602, 611, 128 A. 2d 897; Commonwealth v. Bentley, 287 Pa. 539, 135 Atl. 310; Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, 140, 149 A. 2d 434.
Elizabeth Wagner’s examination on her voir dire covered six pages of the notes of testimony. The trial Court stated: “Well, she has twice indicated that she would not vote for a death penalty under any circumstances. . . . The sum total of her testimony on that point doesn’t convince me that she would vote for the death penalty if the circumstances justified it. I sustain the challenge for cause.”
The Commonwealth’s challenge of Mrs. Gorniek for cause was likewise sustained by the Court. Mrs. Gornick pertinently said: “Well, as I said, my religion does state that I should not take another, man’s life and, therefore, I do not think that I would vote for the death penalty.”
The Commonwealth’s challenge of Mrs. Graeff was likewise sustained for cause. Defendant’s attorney [111] asked: “Q. Mrs. Gfraeff, do I understand that you, in response to Mr. Schaffner’s questions, indicated that you could not render a death verdict even if the circumstances warranted it, in any case? Is that what your answer is? A. I believe that’s what my answer would be.”
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Opinion
Per Curiam,
The Court being equally divided, the judgment of sentence is affirmed.
Opinion by
Mr. Chief Justice Bell
in Support op Affirmance, May 9, 1969:
Defendant-appellant was convicted of murder in the first degree and sentenced to life imprisonment. On this appeal he raises three questions which will be discussed after a brief summary of the facts, considering as we must, the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth: Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301; Commonwealth v. Burns, 409 Pa. 619, 187 A. 2d 552; Commonwealth v. Kravitz, 400 Pa. 198, 161 A. 2d 861; Commonwealth v. Melton, 406 Pa. 343, 178 A. 2d 728.
Defendant killed his wife in their apartment on Boas Street in Harrisburg, either after dinner on May 13th or in the early morning hours on May 14th, 1966. They had been having marital trouble for several years, each blaming it on the other. Defendant left their home and went to Phoenix, Arizona, to obtain employment. While in Phoenix, he heard that his wife had sought to have him arrested for desertion. As soon as he could borrow sufficient funds, he returned to Har[108] risburg, and for the next several weeks attempted a reconciliation.
On the night of the murder, defendant went to his wife’s apartment. They had dinner together, which she prepared, discussed their marital problems, and agreed upon a reconciliation. Then they went to bed and had sexual intercourse. After that, she got up and got some soft drinks. Upon her return, she asked defendant for some money and he gave her $40, which she took and hid. She then returned to their bed, whereupon, according to defendant’s testimony, he “went wild.” He reached for a screwdriver which was on a night stand next to their bed and admitted that he stabbed her three times with the screwdriver—once in the lung, once near her rib, and one superficial wound. When she was dying she said, “Leon, I love you.” He testified that he could not recall when she said that, or whether “it could have been my own mind telling me this.” Although her death was caused by strangulation and not by the stabbing, defendant testified that he does not remember strangling his wife at all.*
The next thing defendant remembered after picking up the screwdriver was standing in the hallway and seeing his wife lying dead on the bed. He then wrote a note saying he loved her and cut his arms in three places. He testified that he then returned to their bed and hugged his dead wife.
He next recalls standing in the rain at the corner of Third and Foster Streets, Harrisburg. He hailed a cab which took him to the home of Mr. Archie Moore, [109] his minister, who lived in Middletown, Pennsylvania. He arrived at his minister’s home at approximately 4:30 A.M. on May 14, 1966 and told Mr. Moore that he had killed his wife, whereupon Mr. Moore called the police.
Defendant further testified at his trial that he loved his wife very much and did not intend to kill her.
Patricia A. Metz, a witness for the Commonwealth, testified that in February, 1965, defendant told her “One of these days I am going to kill her [the victim], I am going to kill her.” She further testified that approximately two to four weeks before the killing defendant said to her, “Pat, ... I am going to get rid of her and make her so that no other guy would ever want her.”
Mrs. Marie Weber, who is the victim’s aunt, and who had raised her from childhood, testified that defendant made threats to kill his wife just a month before the killing. She further testified that the defendant, who was living at her home in Phoenix in Arizona, stated “If he didn’t get the money from his wife, he said he was going back east and kill her.” Mrs. Weber and her husband then took defendant to the Catholic Church in Phoenix to attempt to obtain money for him to return to Harrisburg. When defendant was not able to obtain the money from the Catholic Church, “. . . then he said ‘I’m going back east to kill my wife. I’m going back and finish her off.’ ”
Defendant contends that all this evidence was insufficient to support a verdict of first-degree murder. Of course, this contention is ridiculous.
Defendant’s two other contentions are that the trial Judge committed reversible error when he (1) sustained three challenges for cause made by the Assistant District Attorney and (2) refused to permit a psy[110] chiatrist to testify as to defendant’s state of mind at the time of the victim’s death.
Challenges for Cause
A jury of 63 prospective jurors and nine prospective alternate jurors was impaneled for this case. Appellant contends that a new trial should be granted because the trial Judge improperly exercised or abused his discretion in sustaining the District Attorney’s challenges of three prospective jurors for cause. The Court has a wide discretion in such cases, which will be reversed only for palpable abuse or error of law. Commonwealth v. Gelfi, 282 Pa. 434, 438, 128 Atl. 77; Commonwealth v. McGrew, 375 Pa. 518, 526, 100 A. 2d 467; Commonwealth v. Pasco, 332 Pa. 439, 445, 2 A. 2d 736; Commonwealth v. Fletcher, 387 Pa. 602, 611, 128 A. 2d 897; Commonwealth v. Bentley, 287 Pa. 539, 135 Atl. 310; Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, 140, 149 A. 2d 434.
Elizabeth Wagner’s examination on her voir dire covered six pages of the notes of testimony. The trial Court stated: “Well, she has twice indicated that she would not vote for a death penalty under any circumstances. . . . The sum total of her testimony on that point doesn’t convince me that she would vote for the death penalty if the circumstances justified it. I sustain the challenge for cause.”
The Commonwealth’s challenge of Mrs. Gorniek for cause was likewise sustained by the Court. Mrs. Gornick pertinently said: “Well, as I said, my religion does state that I should not take another, man’s life and, therefore, I do not think that I would vote for the death penalty.”
The Commonwealth’s challenge of Mrs. Graeff was likewise sustained for cause. Defendant’s attorney [111] asked: “Q. Mrs. Gfraeff, do I understand that you, in response to Mr. Schaffner’s questions, indicated that you could not render a death verdict even if the circumstances warranted it, in any case? Is that what your answer is? A. I believe that’s what my answer would be.”
Until a few months ago, the law was well settled both in this Court and in the Supreme Court of the United States that a juror could be challenged for cause if he has conscientious scruples or religious beliefs which would prevent him from returning the death penalty or if he has a fixed opinion about the case and the defendant’s guilt. Commonwealth v. Lopinson, 427 Pa. 284, 296, 234 A. 2d 552; Commonwealth v. Bentley, 287 Pa., supra; Commonwealth v. Gelfi, 282 Pa., supra; Commonwealth v. Pasco, 332 Pa., supra; Logan v. United States, 144 U.S. 263, 298. However, appellant relies upon Witherspoon v. Illinois, 391 U.S. 510, and Bumper v. North Carolina, 391 U.S. 543, which drastically changed the long established law concerning the test for challenges for cause and limited it to cases where a juror had a fixed opinion against the death penalty.
In Witherspoon v. Illinois, the Court held (pages 522-523) : “Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected. . . .
“We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were [112] those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt* Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.” (Italics in original Opinion.)
In Bumper v. North Carolina, 391 U.S., supra, the Court said: “In Witherspoon v. Illinois, decided today, we have held that a death sentence cannot constitutionally be executed if imposed by a jury from which have been excluded for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment.”
We believe there was no abuse of discretion in the trial Judge’s ruling on these three prospective jurors, but if there was error, it was not prejudicial or reversible error, since Witherspoon and Bumper apply only to cases (retroactive as well as prospective) where the penalty or sentence imposed was death.
[113] Psychiatric Testimony
At the conclusion of defendant’s testimony, his counsel announced that his next witness would he Dr. Harry g. Whiting, a psychiatrist. At this point, the District Attorney requested an offer of proof “on the evidence or testimony that the doctor will submit or make.” Counsel for defendant replied: “Dr. Whiting will testify as to the defendant’s state of mind at the time he took the life of his wife, at the time of the death of his wife. The Court: Have you anything further to add to that offer or not? . . . Yes, I do.” At that point, the District Attorney said, “We would like to urge the Court first to find out whether the evidence that the doctor will give will tend to establish that the defendant at the time of the crime was insane under the rules of the Pennsylvania gupreme Court and this Court, commonly called the M’Naghten Rule. The Court: What is your answer to that, Mr. gtoner? Mr. gtoner: No, no. The Court: More specifically, what do you mean? Mr. gtoner: No, the defendant was not under the M’Naghten Rule. Dr. Whiting will not testify that the defendant was insane under the M’Naghten Rule.”
The Commonwealth’s objection to the offer of this testimony was sustained by the trial Judge, and we agree with the Court’s ruling.
Defendant frankly states that he is opposed to the M’Naghten Rule, and frankly admits that the decision of the lower Court was in accord with the prior recent decisions of this Court. He therefore urges us to overrule Commonwealth v. Phelan, 427 Pa. 265, 234 A. 2d 540; Commonwealth v. Ahearn, 421 Pa. 311, 218 A. 2d 561, and other recent decisions of this Court. This we decline to do, but, on the contrary, reaffirm the law set forth therein.
[114] In Commonwealth v. Phelan, 427 Pa., supra, the Court, in an Opinion by Justice Eagen, joined in by Chief Justice Bell, Justice Musmanno, Justice Jones and Justice O’Brien, said (pages 278-279) :* “During the hearing to determine the degree of guilt,** the court refused to admit medical testimony tending to establish that at the time of the commission of the crimes Phelan lacked the mental ability to form the intent to kill, a necessary ingredient of first degree murder, and lacked substantial capacity to conform his conduct to the requirements of the law. This was not error. See Commonwealth v. Ahearn, 421 Pa. 311, 218 A. 2d 561 (1966), and Commonwealth v. Woodhouse, 401 Pa. 242, 164 A. 2d 98 (1960). As stated in Commonwealth v. Ahearn, supra, at 324, 218 A. 2d at 568, such evidence is not admissible £(1) to absolve or exculpate and acquit a defendant of crime, or (2) to prove a lack of specific intent to kill, and thereby prohibit a verdict of murder of the first degree.’ See also, Commonwealth v. Carroll, 412 Pa. 525, 194 A. 2d 911 (1963). Moreover, this testimony was properly received in evidence and considered by the court in mitigation of the penalty during the hearing to determine the sentences to be imposed.”
In Commonwealth v. Ahearn, 421 Pa., supra, the Court more fully said (pp. 324-325) : “We hold that the psychiatric testimony offered in this case is not admissible (1) to absolve or exculpate and acquit a defendant of crime, or (2) to prove a lack of specific intent to kill, and thereby prohibit a verdict of murder of the first degree. This has always been the law of Pennsylvania. Commonwealth v. Tyrrell, 405 Pa., supra. We further hold that [particularly] since the [115] Act of December 1, 1959, P. L. 1621, 18 P.S. §4701, (popularly known as the Split Verdict Act), unless psychiatric testimony is introduced for the purpose of showing insanity under the M’Naghten Rule, (a) it is admissible only after guilt has been determined by a jury or Court, and (b) is relevant and admissible thereafter only for the limited purpose of aiding the jury or Court in fixing the penalty.” This is especially wise since the Split Verdict Act of 1959.
The aforesaid and the following cases answer all the contentions and theories advanced by the appellant and by the minority of this Court.
In Commonwealth v. Melton, 406 Pa. 343, 178 A. 2d 728 (1962), this Court again rejected the doctrine or theories of schizophrenic and other kinds of psychopaths and of moronic or deficient mentality or diminished responsibility, and pertinently said (pages 349-350) : “Defendant’s third and last contention is that (a) because of his deficient mentality the lower Court did not have the power [after a plea of guilty] to find him guilty of first degree murder with penalty of death, or (b) if it had the power to so find, it abused its discretion in imposing the death penalty.
“There is not the remotest merit to defendant’s contention that because of his deficient mentality, the Court did not have the power to convict him of murder in the first degree.
“In Commonwealth v. Smith, 405 Pa. 456, we sustained a verdict of guilty of murder in the first degree with penalty of death, even though defendant was a sexual psychopath. We there said [with one concurrence and no dissents] (pages 459-460) : ‘This Court has sustained a verdict of first degree murder with penalty of death where defendant allegedly had an irresistible impulse, was a moron or a mental defective or a sexual pervert or a psychopathic personality, or [116] had been previously confined in the hospital for the criminal insane for 14 years, or was a schizophrenic psychopath or was an unstable, mentally defective moron, or was feeble-minded: [citing 10 prior decisions of this Court.] . . .’ ”
In Commonwealth v. Tyrrell, 405 Pa. 210, 174 A. 2d 852, where, after a plea of guilty to murder, the Court, in a unanimous Opinion, by Chief Justice Bell, said (pages 219-220) :
“Defendant’s psychiatric evidence and the applicable Law
“The lower Court on petition of defendant’s counsel ordered an inquiry into the defendant’s mental condition by two qualified psychiatrists, Charles W. Iobst, M.D., and John C. Lychak, M.D. Dr. Iobst examined the defendant on May 23, 1960, and Dr. Lychak examined him on May 31, 1960. Although written reports were submitted to the Court and to defendant’s counsel, neither of these doctors was called to testify. Instead the defendant called Dr. Donald K. Coleman, who had examined the defendant on September 18, 1960, nine days before the first day of trial. Dr. Coleman testified that the defendant fell into the simple type of schizophrenia, which is an impairment in the emotional life but not in the intellectual life. He described his examination as ‘Listening to him, watching his mannerisms, watching his affect, his no sense of feeling when he described anything connected with love or death, his behavior, his running away pattern. His thinking was clear. He . . . showed no signs of intellect impairment. It was all in the emotional state. . . .’
“As a result Dr. Coleman determined that the defendant was psychotic since teen age* and that he was [117] so emotionally upset on March 7, 1960, that ‘he would react to an impulse to pick up a loaded shotgun resting at his elbow and fire it at his wife, and that at that time he had no intent to take his wife’s life.’
“The doctrine of ‘irresistible impulse’ or in the modern psychiatric vernacular ‘inability to control one’s self’, whether used to denote legal insanity, or as a device to escape criminal responsibility for one’s acts or to reduce the crime or its degree, has always been rejected in Pennsylvania. In Commonwealth v. Neill, 362 Pa. 507, 67 A. 2d 276, Mr. Chief Justice Stern said: ‘Apart from the fact that “confusional insanity” is apparently an antiquated and discarded theory and that the proposition that there could be such a thing as a momentary insanity was sharply challenged by an expert witness for the Commonwealth, it would seem quite obvious that defendant’s witness failed to differentiate between a mere temporary frenzy or emotional excitation, and insanity within the legal meaning of that term, namely inability, from disease of the mind* to understand the nature and quality of the act and to distinguish between right and wrong with respect to it: Commonwealth v. Szachewicz, 303 Pa. 410, 416, 417, 154 A. 483, 485; Commonwealth v. Lockard, 325 Pa. 56, 60, 188 A. 755, 757. . . Certainly neither social maladjustment, nor lack of self-control,* nor impulsiveness, nor psychoneurosis, nor emotional instability, nor chronic malaria, nor all of such conditions combined, constitute insanity within the criminal-law conception of that term.’ ”
In Commonwealth v. Woodhouse, 401 Pa., supra, a defendant was convicted of murdering his sixteen-year-old adopted daughter and the jury fixed the penalty at life imprisonment. While the defense was insanity, [118] the Court reviewed many different psychiatric tests which had been advanced over the years and rejected them, and once again' reaffirmed .the M’Naghtén Rule. With respect, to the M’Naghten Rule, the Court pertinently said (pages 258-259) : “Until some rule, other than ‘M’Naghten,’ based on a firm foundation in scientific fact for effective operation in the protection and security of society, is forthcoming, we shall adhere to it. We shall not blindly - follow the opinion of psychiatric and medical experts and substitute for a legal principle which has proven durable and practicable for decades, vague rules that provide no positive standards."*
In Commonwealth v. Carroll, 412 Pa., supra, the Court pertinently said (page 587) : “ ‘. : . society would be almost completely unprotected from criminals if the law permitted a blind or irresistible impulse or inability to control one’s self, to excuse or justify a murder or to reduce it from first degree to second degree.** In the times in which we are living nearly every normal adult human being has moments or hours or days or longer periods when he or she is depressed and disturbed With resultant emotional upset feelings and so-called blind Impulses; and the young especially have many uncontrolled emotions every day which are euphemistically called irresistible impulses. The Courts of Justice should not abdicate their function and duty of determinmg criminal responsibility to the psychiatrist.** In such event, the. test will differ not only with each psychiatrist but also with the prevailing psychiatric winds of the moment.*** “ ‘. . . Only a short [119] time ago that coneept [of irresistible impulse] was emphatically presented as an example of the “uniform” opinion of psychiatrists on criminal responsibility; and yet today, “irresistible impulse” is rejected by most psychiatrists as unsound. . . .’*** [Professor] Hall, ‘Psychiatry and Criminal Responsibility’, 65 Yale L. J. 761, 762 (1956);" State of New Jersey v. Lucas, 30 N.J. 37, 152 A. 2d 50.’
“Just as the Courts cannot abdicate to the psychiatrists the task of determining criminal responsibility in law, so also they cannot remit to psychiatrists the right to determine the intent or the state of mind of an accused at the time of the commission of a homicide.”
We again reaffirm our prior decisions (1) that the M’Naghten Rule governs the question and issue of insanity and (2) that testimony by psychiatrists or psychologists or others that defendant was incapable for one or more psychiatric or psychological reasons to form a specific intent to kill (a) is inadmissible on the question of guilt but (b) is admissible on the subject or issue of penalty or sentence. To hold otherwise would not only circumvent and nullify the M’Naghten Rule but would in practical effect turn over to psychiatrists the determination of whether the accused was or could be guilty of murder in the first degree and thereby jeopardize Justice.
In the light of the psychiatric testimony in behalf of the defendant in numerous murder cases—see especially such testimony in Commonwealth v. Ahearn, 421 Pa., supra, and in Commonwealth v. Tyrrell, 405 Pa., supra—the safety of law-abiding citizens would be further greatly endangered and the convictions of [120] dangerous criminals would be substantially reduced, if psychiatric testimony were admissible to prove lack of or incapacity to form an intent to kill.
I find no merit in any of defendant’s contentions and I would affirm the judgment of sentence.
Mr. Justice Eagen and Mr. Justice O’Bbien join in this opinion.