Commonwealth v. Morley

SAYLOR, Judge:

This is an appeal from a judgment of sentence for first degree murder entered in the Court of Common Pleas of Chester County following a degree of guilt hearing.

Appellant, Gaye Morley, entered a plea of guilty to a general charge of criminal homicide in connection with the shooting death of her boyfriend, Stephen Lauritano. At the degree of guilt hearing, Appellant asserted a diminished capacity defense, arguing that she had been in a “depersonalized state” at the time of the killing and therefore had been unable to formulate a specific intent to MU. At the conclusion of the defense’s case-in-chief, defense counsel joined a prosecution request to permit the Commonwealth’s psychiatric expert, Dr. Kenneth Kool, to conduct an examination of Appellant prior to his testifying. Pursuant to this agreement, the trial court entered an order appointing Dr. Kool to examine Appellant in order to permit him to express an opinion regarding Appellant’s mental state at the time of the incident in which she had been charged and permitting Dr. Kool to examine the hospital records of Appellant in order to assist him in forming his opinion. The trial court also ordered that defense counsel be notified of the date and time of the examination so that they could be present. Dr. Kool examined Appellant and thereafter testified at the degree of guilt hearing as a rebuttal witness for the Commonwealth.

At the conclusion of the hearing, the trial court found Appellant guilty of first degree murder. Post-trial and supplemental post-trial motions were denied after an evidentia-ry hearing, and Appellant was sentenced to life imprisonment.

On appeal, Appellant contends that her right against compulsory self-incrimination was violated when she was allegedly compelled to participate in an interview with the Commonwealth’s psychiatrist without being told that she had a right not to answer the psychiatrist’s questions. She further contends that her statements concerning the commission of the crime which she made during the examination were admitted as evidence of her intent to kill, thereby violating her privilege against self-incrimination, and that counsel was ineffective for failing to advise her of her right to remain silent during the examination and for failing to object to the use of her statements at the degree of guilt hearing. She also contends that counsel was ineffective for failing to call character witnesses on her behalf.

In arguing that her Fifth Amendment rights were violated, Appellant relies primarily on the decision of the Pennsylvania Supreme Court in Commonwealth v. Pomponi, 447 Pa. 154, 284 A.2d 708 (1971). In Pomponi, the court reaffirmed its prior rulings that the Fifth Amendment precludes a defendant from being compelled to answer questions posed by the Commonwealth’s psychiatric expert during a court-ordered psychiatric examination. Appellant also relies upon Commonwealth v. Hale, 467 Pa. 293, 356 A.2d 756 (1976), in which the Pennsylvania Supreme Court further held that a defendant has the right to be advised of his privilege against self-incrimination prior to answering any questions during a court-ordered psychiatric examination. Therefore, Appellant claims that because her statements about the shooting were obtained in violation of her Fifth Amendment rights, the use of these statements at her degree of guilt hearing constituted reversible error.

Since the Pennsylvania Supreme Court’s decisions in Pomponi and Hale, however, several decisions of the United States Supreme Court have addressed the applicability of the Fifth Amendment to court-ordered psychiatric examinations and the use of the results of such examinations as evidence at trial.

First in this line of decisions is Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), which involved a criminal defendant who had neither requested a psychiatric examination nor attempted to introduce any psychiatric evidence at trial. However, a psychiatrist had examined the defendant pursuant to a court order for the purpose of determining the defendant’s competency to stand trial. The Supreme Court considered the applicability of the Fifth Amendment privilege against self-incrimination, and held that “[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.” Id., 451 U.S. at 468, 101 S.Ct. at 1876, 68 L.Ed.2d at 372. The Supreme Court observed, however, that the result might have differed had the defendant raised an insanity defense and thereby placed his mental status at issue. Id., 451 U.S. at 465-466, 101 S.Ct. at 1874, 68 L.Ed.2d at 370-371.

In Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the Supreme Court held that when a defendant raises an insanity defense, not only can he be compelled to submit to a psychiatric examination, but the testimony of the examining psychiatrist may also be admitted as evidence concerning the issue of insanity. The defendant in Buchanan had presented a defense of “extreme emotional disturbance” and had offered testimony concerning reports which contained evaluations of his mental condition. Distinguishing these facts from Smith, the Court noted that the defendant’s psychiatric examination had been at the joint request of the Commonwealth and defense counsel, and stated that

if a defendant requests such an examination or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.

Buchanan, 483 U.S. at 422-423, 107 S.Ct. at 2917-2918, 97 L.Ed.2d at 355.

Finally, in Powell v. Texas, 492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551 (1989), the United States Supreme Court further acknowledged the necessity of providing the government with a means to rebut a mental status defense. Noting its previous decisions in Smith and Buchanan, the Court observed:

“[wjhen a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the state of the only effective means it has of controverting his proof on an issue that he has interjected into the case.”

Powell, supra, 492 U.S. at 684, 109 S.Ct. at 3149, 106 L.Ed.2d at 556, quoting Estelle v. Smith, 451 U.S. at 465-466, 101 S.Ct. at 1874, 68 L.Ed.2d at 370-371.

In addition to the decisions of the United States Supreme Court, many federal court decisions have also addressed the issues of whether a defendant who has raised a mental status defense can be compelled to submit to a psychiatric examination, and whether the government may thereafter use testimony concerning the results of such an examination to rebut such a defense.

In discussing the issue of whether a defendant may be compelled to submit to a psychiatric examination, federal courts have generally reiterated the principles enunciated in Smith, Buchanan and Powell, and have further emphasized that

[i]t would be a strange situation, indeed, if, first, the government is to be compelled to afford the defense ample psychiatric service and evidence at government expense and, second, if the government is to have the burden of proof, ... and yet it is to be denied the opportunity to have its own corresponding and verifying examination, a step which is perhaps the most trustworthy means of attempting to meet that burden.

United States v. Byers, 740 F.2d 1104, 1113 (D.C.Cir.1984), quoting Pope v. United States, 372 F.2d 710, 720 (8th Cir.1967) (en banc), vacated and remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), cert. denied, 401 U.S. 949, 91 S.Ct. 953, 28 L.Ed.2d 232 (1971).

Thus, the Circuit Courts of Appeals are virtually unanimous in holding that, where a defendant interposes at trial the defense of insanity, his Fifth Amendment privilege against self-incrimination is not violated by a court-ordered psychiatric examination. See, McNeill v. Fulcomer, 753 F.Supp. 1294, 1298 (E.D.Pa.1990); Byers, supra, 740 F.2d at 1111.

In addition, federal courts have uniformly held that “[ajlthough the fifth amendment normally bars the government from subjecting the defendant to a psychiatric examination without warning him of his constitutional rights, that bar is waived once the defendant introduces psychiatric evidence in support of a mental defense.” Hendricks v. Vasquez, 974 F.2d 1099, 1108 (9th Cir.1992), citing Powell v. Texas, supra. See also: Silagy v. Peters, 905 F.2d 986, 1005 (7th Cir.1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991); Granviel v. Lynaugh, 881 F.2d 185, 190 (5th Cir.1989), cert. denied, 495 U.S. 968, 110 S.Ct. 2577, 109 L.Ed.2d 758 (1990); Washington v. Murray, 952 F.2d 1472, 1480 (4th Cir.1991).

Finally, the majority of federal courts which have considered the issue of whether the government may use psychiatric testimony to rebut a defendant’s mental status defense have generally followed the holding of the United States Supreme Court in Buchanan that when a defendant introduces into evidence psychiatric testimony to support a mental status defense, the state may introduce testimony of examining psychiatrists on that issue as well. McNeill, supra, 753 F.Supp. at 1298; Byers, supra, 740 F.2d at 1111. The rationale underlying this position was expressed by the Tenth Circuit in United States v. Julian, 469 F.2d 371 (10th Cir.1972):

[W]hen the defendant has raised the issue of insanity and the psychiatrist is called to testify on this question, the defendant must not be allowed to muzzle him at his option.

Id., 469 F.2d at 376.

Thus, it is now clear that when a defendant places his mental status at issue, he may be subjected to compulsory examination by court-appointed psychiatrists, and psychiatric testimony may be introduced by the government at trial to rebut his mental status defense without violating the Fifth Amendment.¹ Accordingly, Appellant could constitutionally be required to submit to a psychiatric examination without being advised of her Fifth Amendment privilege against self-incrimination,² and the examining psychiatrist’s testimony concerning his medical conclusions based upon such examination was admissible at Appellant’s degree of guilt hearing.

Appellant also argues, however, that Dr. Kool, the court-appointed psychiatrist, should not have been permitted to testify as to specific statements made by Appellant during the examination, reasoning that such testimony amounts to compelled inculpatory testimony in violation of Appellant’s constitutional rights. We disagree, and on the contrary conclude that because Appellant’s statements to Dr. Kool concerning the events surrounding the commission of the crime were admitted for the limited purpose of rebutting her assertion of diminished capacity, no violation of Appellant’s constitutional rights occurred.

Although no United States Supreme Court decision has yet dealt specifically with the issue of the admissibility of specific statements of the accused, federal circuit courts which have considered this issue have held that

a psychiatric expert can relate statements of the defendant which are used to determine sanity. In United States v. Byers, 740 F.2d 1104 (D.C.Cir.1984) (en banc), the court held that the Fifth Amendment was not violated by a Government psychiatrist’s testimony detailing unrecorded statements made by the defendant during a court-ordered examination. The court concluded that to hold otherwise would have an “unreasonable and debilitating effect” on “society’s conduct of a fair inquiry into the defendant’s culpability.” Id. at 1113.

Isley v. Dugger, 877 F.2d 47, 50 (11th Cir.1989). Likewise, psychiatric testimony has also been held admissible to rebut the defense of diminished capacity. United States v. Halbert, 712 F.2d 388, 390 (9th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984).

In holding that psychiatric testimony may be used at trial to rebut a defendant’s mental status defense, federal courts have carefully distinguished between psychiatric testimony concerning the issue of a defendant’s sanity and psychiatric testimony concerning the issue of a defendant’s guilt. In Gibson v. Zahradnick, 581 F.2d 75 (4th Cir.1978), the Fourth Circuit acknowledged this difference, noting that

[United States v. Albright, 388 F.2d 719 (4th Cir.1968) ] drew a sharp distinction between the use of the results of compulsory psychiatric examinations on the issue of sanity and the use of an incriminating statement made during a compulsory examination on the issue of guilt. The former is permissible; the latter is constitutionally forbidden. At least seven other United States Courts of Appeals have since indicated agreement with our holding that this kind of statement cannot be used on the issue of guilt.

Gibson, supra, 581 F.2d at 78 (citations omitted). See also, McNeill, supra, 753 F.Supp. at 1298.

These cases have drawn this distinction because “the purpose of the examination is not to determine whether a defendant did or did not do the criminal acts charged, but whether he possessed the requisite mental capacity to be criminally responsible therefor-” United States v. Albright, 388 F.2d 719, 725 (4th Cir.1968).

Appellant pled guilty to the general charge of homicide. Such a plea is not a plea of guilt to first degree murder; it is “simply an acknowledgement by a defendant that he participated in certain acts with a criminal intent.” Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991), citing Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984). Once such a plea has been tendered, the Commonwealth bears the burden of proving the essential elements of the higher degree of crime. Mitchell, supra, 528 Pa. at 550, 599 A.2d at 626 (citations omitted). Therefore, the degree of homicide for which Appellant would be held criminally liable was to be determined at the degree of guilt hearing.

By asserting the defense of diminished capacity, however, Appellant raised the additional issue of whether she was capable of performing a specified cognitive process. The psychiatric testimony at issue was admitted not to prove Appellant’s guilt, which she had already conceded by entering a general plea of guilty to criminal homicide. Nor was it admitted to prove the degree or level of her guilt. Rather, it was admitted to rebut her assertion that because of her mental state at the time of the shooting, she was incapable of forming a specific intent to kill. This was entirely permissible under relevant case law.

In Isley v. Dugger, 877 F.2d 47 (11th Cir.1989), the Eleventh Circuit, in discussing whether a psychiatrist should have been permitted to quote the defendant’s statements concerning the commission of the crime directly to the jury, noted:

Dr. Gonzalez testified that he based his opinion of Isley’s sanity on several of [the] facts recounted to him by Isley. Dr. Bour-kard had testified at trial that the basis for his opinion was Isley’s statement to him about his actions during and after the murder. The question is whether the psychiatrists should have been allowed to quote Isley’s statements directly to the jury.... Since the statements clearly were used in forming their opinion, ... there was no constitutional error in allowing them to recite statements made by the defendant to explain the basis for their opinion.

Id,., 877 F.2d at 49.

Likewise, in the instant case, Appellant’s statements were admitted solely as an explanation for Dr. Kool’s expert opinion that Appellant was capable of forming a mental state for which she could be held criminally liable. The Commonwealth continued to bear the burden of proving the level of Appellant’s criminal intent.

Under similar circumstances, the District of Columbia Circuit noted:

We recognize that some of the expert’s testimony incorporated statements by appellant regarding the manner in which she planned and committed the offense. Had this testimony been admitted for its tendency to buttress appellant’s guilt, the self-incrimination question would generate grave concern. But the challenged testimony was elicited solely for the purpose of supporting the experts’ conclusion that appellant was criminally responsible for her actions at the time of the offense. Furthermore, since appellant raised no issue as to guilt or innocence apart from her claim of mental illness, we detect no harm from its introduction, and certainly no plain error.

United States v. Whitlock, 663 F.2d 1094, 1107 (D.C.Cir.1980) (footnotes omitted).

Therefore, in this case, “the evidence [was] not being received testimonially to establish the guilt of the accused. Rather, it [was] being used circumstantially as it [bore] on the defendant’s mental state.” Julian, supra, 469 F.2d at 376. Accordingly, the psychiatric testimony was admissible in its entirety to rebut the defense of diminished capacity by establishing the basis for Dr. Kool’s expert opinion.

Having discerned no violation of Appellant’s Fifth Amendment rights, it follows that counsel was not ineffective for failing to object to the use of Appellant’s statements at trial. We also find no merit to Appellant’s claim that counsel was ineffective for failing to call character witnesses on her behalf.

It is well settled that trial counsel is presumed to have been effective, and that the defendant bears the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990). To establish counsel’s ineffectiveness, the defendant must prove: 1) that his underlying claim possesses arguable merit; 2) that the course chosen by counsel could have had no reasonable basis designed to serve the defendant’s interests; 3) that the defendant was prejudiced by counsel’s act or omission. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

Both the Supreme and Superior Courts of this Commonwealth have held that an attorney who fails to use character evidence on behalf of a defendant can be deemed ineffective if there is no reasonable basis for such failure. Commonwealth v. Mickens, 409 Pa.Super. 266, 597 A.2d 1196 (1991); Commonwealth v. Thuy, 424 Pa.Super. 482, 623 A.2d 327 (1993). To be admissible, however, character evidence must be relevant, having a “‘proper relation to the subject-matter of the charge at issue ...,’” and such evidence “is permitted on the theory that general reputation reflects character and a person with a good character for peaceableness, for example, would not in all reasonable probability commit an unlawful act of violence.” Commonwealth v. Castellano, 277 Pa. 117, 122-123, 121 A. 50, 51-52 (1923) (citation omitted).

Since Appellant had already pled guilty to the unlawful act of criminal homicide, evidence of her good character would have been irrelevant at the degree of guilt hearing; therefore, counsel could not have been ineffective for failing to present such evidence.

Having found no merit to any of the issues presented by Appellant, we affirm the judgment of sentence.

HUDOCK, J., files a Concurring and Dissenting Opinion in which CAVANAUGH and JOHNSON, JJ., join.

DEL SOLE, J., files a separate Concurring and Dissenting Opinion.

1 . Although the guarantees provided by the Pennsylvania Constitution may afford greater protection than the guarantees of the federal constitution, Commonwealth v. Sell, 504 Pa. 46, 63-64, 470 A.2d 457, 466-467 (1983), the privilege against self-incrimination embodied in Article I, Section 9 of the Pennsylvania Constitution does not expand upon the protection afforded by the Fifth Amendment of the United States Constitution; rather, the protection afforded by the two constitutional provisions is co-extensive. Commonwealth, Department of Environmental Resources v. Marra, 527 Pa. 526, 527 n. 2, 594 A.2d 646 n. 2 (1991). Accordingly, when the privilege against self-incrimination is invoked in a state proceeding, federal standards govern. Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (1967). Therefore, the decisions of federal courts concerning the applicability of the privilege against self-incrimination to court-ordered psychiatric examinations and to the admissibility of the results of such examinations are instructive and persuasive, in addition to the holdings of the United States Supreme Court, which are binding.

2 . Contrary to Appellant’s assertion, the record reveals that Appellant consented to the examination because defense counsel anticipated that the results would support Appellant’s claim of diminished capacity. Therefore, Appellant was not, as she claims, compelled to submit to the examination. However, because Appellant had raised a claim of diminished capacity, which is a mental status defense, under Smith and Buchanan she constitutionally could have been compelled to submit to such an examination.