Commonwealth v. Rosh

377 A.2d 1269, 474 Pa. 171, 1977 Pa. LEXIS 776

• Court: Supreme Court of Pennsylvania
• Decided: October 7, 1977
• Docket: No. 65
• Status: Published

Opinion

OPINION OF THE COURT

PACKEL, Justice.

The main contention¹ of appellant is that this is “a clear case of irresistible impulse” and that this Court should depart from its old² and recent³ views with respect to that defense. It is uncontroverted that the appellant shot and killed his wife and also her friend who had tried to stop him from entering a room occupied by his wife.

The contention need not be considered because a review of the record does not reveal this as a case of irresistible impulse but rather a matter of deliberative choice by the appellant. This appears from- the testimony of appellant’s psychologist, who responded to appellant’s counsel as follows:

“Q. When you describe him having a conversation with his wife then going out to the car, thinking about the rifle apparently, apparently already provoked, disturbed yet he stops and puts oil in the car—

A. He’s going'back and forth, ‘What should I do’ and getting oil is an innocuous activity, gives' him time to think.

Q. It’s an effort to avoid going further? -

A. Or at least evaluate what he should do and coming up with the bad choice. That’s the way I recall his relating it to me.” (N.T. 71).

The real purpose of the psychologist’s testimony was to establish that intense passion caused the killings. We agree with the court below that neither murder conviction should be reduced to voluntary manslaughter.

Judgment affirmed!

ROBERTS and MANDERINO, JJ., concur in result.

1 . The other contention as to the use of a subjective standard rather than an objective standard in determining provocation is dealt with in Commonwealth v. Miller, 473 Pa. 398, 374 A.2d 1273 (1977).

2 . See Commonwealth v. Mosler, 4 Pa. 264, 267 (1846).

3 . See Commonwealth v. Hamilton, 459 Pa. 304, 329 A.2d 212 (1974).