Commonwealth v. Moore

Justice SAYLOR

concurring.

On the basis of the Court’s decision in Commonwealth v. Legg, 551 Pa. 437 , 711 A.2d 430 (1998), I am constrained to join the disposition directed by the lead opinion. 1 I am unable to meaningfully distinguish Legg , since the expert there, Dr. Herbert Levit, is the same psychologist who testified at the PCRA hearing in the present case, and here, as in Legg , Dr. Levit “spoke to more than an inability of Appellant to control [him]self, and directly related Appellant’s underlying mental defect to [his] inability to formulate a specific intent to kill.” Id. at 444-45 , 711 A.2d at 433 .

The difficulty that I have with Dr. Levit’s testimony is that it is quite unspecific in terms of mental health diagnosis, as well as the medical reasons why Appellant’s mental condition *521 eliminated his ability to form the requisite specific intent to commit murder. For example, Dr. Levit testified that Appellant suffered, inter alia, from major depression. This term, however, covers a broad range of mental states, each characterized by different groupings of features. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 339-345, 376-78 (4th ed.1994). Rather than presenting a specific diagnosis and describing the nature and degree of an associated cognitive impairment, the focus of Dr. Levit’s testimony was directed more generally to rendering an opinion on the ultimate legal question involved. See, e.g., N.T., March 19, 1998, at 8 (“I think that his capacity was significantly diminished to formulate any intent”), id. at 9 (“so I don’t think there was, from my perspective, the ability to commit a first degree murder”).

Particularly in light of the truncated and conclusory nature of the expert testimony, it is also troubling to me that it cannot be discerned from the record just what understanding Dr. Levit possesses concerning the legal requirements about which he was rendering an opinion. Indeed, on cross-examination, the psychologist seemed to maintain a very broad perspective concerning the conditions that would support a diminished capacity defense under Pennsylvania law. See N.T., March 19, 1998, at 17 (“certainly when a person is violent when they are mentally ill or when they are under the influence of cocaine or alcohol or what have you, I don’t think that this is the same kind of violence as a premeditated kind of thing”). As Justice Castille discussed at length in his dissenting opinion in Legg , under the law prior to Legg , Dr. Levit’s testimony would have been insufficient as a matter of law to support a diminished capacity defense. See Legg, 551 Pa. at 458 , 711 A.2d at 440 (Castille, J., dissenting)(“The defense of diminished capacity can only be established if the proponent proves that a the time of the killing, he was suffering from a mental disease, illness or delusional mental state that wholly precluded the cognitive functions of planning, premeditation and deliberation” (citations omitted)). 2

*522 Although the Legg majority did not acknowledge that its decision represented an expansion of the diminished capacity defense, I remain unable to read it otherwise, and, despite the above reservations and those previously expressed by Justice Castille, I therefore find it controlling here.

. Mr. Justice Castille filed a dissenting opinion in that case, which I joined. See Legg, 551 Pa. at 449-65 , 711 A.2d at 435-43 (Castille, J., dissenting).

. In this regard, the defense of diminished capacity should be distinguished from mitigating circumstances in a capital case, in that a *522 substantially broader range of mental health disorders would qualify as mitigation evidence.