Commonwealth v. Simms

Dissenting Opinion by

Hoffman, J.:

In this appeal, we must decide whether a defendant is entitled to a charge on diminished responsibility where he has offered psychiatric testimony to the ef- *112 feet that he lacked the specific intent to commit a crime because of a mental disease or disorder. Concomitant with this contention, appellant argues that the trial court erred in instructing the jury that the Commonwealth is entitled to a presumption of sanity, since the defense had produced expert evidence concluding that the defendant was not sane at the time of the commission of the alleged crime.

This case involves a twenty-nine year old defendant, in his last year of study at Duquesne Law School, who became involved in a fight in a bar and a subsequent shooting. On the evening of October 21, 1971, appellant and some friends were in the Forbes Street Inn, a small bar in Pittsburgh. At some point, there was an argument followed by a fight between the appellant and the complainant, Francis Quinn.

A serious factual dispute arose at time of trial as to the severity of this incident. Commonwealth’s witnesses described the fight as a “brief scuffle” during which the defendant suffered a minor cut. William Ferens and William K. Julin, defense witnesses, testified that the fight, while short, was a violent brawl, from which appellant sustained extensive injuries mostly to the head. Ferens stated that after the fight, the defendant was babbling to himself and did not seem to recognize Ferens, who accompanied the appellant to the bar and was a close friend. Julin confirmed the violence of the fight and defendant’s head injuries and his unusual behavior. Robert K. Stitt, an attorney, testified that when he visited the appellant at the hospital following the incident, appellant was incoherent, could not remember events after the fight, and seemed badly battered about the head and face.

Appellant testified that he had no memory of events immediately after the fight, including his leaving the bar, getting a gun, and shooting the victim. There was no contention, however, that appellant did not in fact *113 shoot the victim when he emerged from the bar, wounding him in the knee. Following the shooting, appellant was confined in a hospital for ten days receiving both psychiatric and medical treatment for loss of memory.

The main defense witness was Doctor Susan Krien-brook, a psychiatrist and Acting Superintendent of Woodville State Hospital, who examined the defendant two days after the shooting. Based on a hypothetical question and on the results of her examination, she stated unequivocally tha,t, in her expert opinion, the defendant was suffering from an organic brain syndrome brought on by blows to the head, and that because of this, he could not, at the time of the shooting, tell right from wrong or form the specific intent to shoot Mr. Quinn. This diagnosis, she stated, was confirmed by another doctor to whom she referred the defendant. Commonwealth offered various rebuttal witnesses including Doctor E. II. Davis of the Allegheny County Behavior Clinic, who did not personally examine the appellant, but who testified that on the basis of the hospital records he could not find evidence of brain damage and .nothing from which he could conclude that defendant was not sane at the time of the shooting.

At the conclusion of the case, the trial judge charged the jury on the applicable law. The jury retired and later returned with a verdict of guilty on four counts: assault with intent to maim, aggravated assault and battery, pointing and discharging a firearm, and violation of the Uniform Firearms Act. From a denial of post-trial motions, the appellant has taken this appeal.

Appellant’s major contentions concern the trial court’s charge to the jury. 1 Over the objection of de *114 fense counsel, and despite psychiatric testimony denying appellant’s sanity at the time of the shooting, the trial judge instructed the jury that any such testimony was entitled to little weight and could only be considered on the question of sanity under the M’Naghten test — whether the defendant understands the nature and quality of his act; and, whether he knows the difference from right and wrong and that the unlawful act is wrong. He refused to instruct the jury that said testimony should be considered in deciding whether the appellant could form the specific intent to commit the proscribed act. Furthermore, the trial court charged that the Commonwealth was entitled to a presumption of sanity, and that the defendant had to prove insanity by a fair preponderance of the evidence.

Except for a number of mala proMbita crimes, most common law and statutory offenses require proof of both the actus reus (the prohibited act) and the mens rea (intent to commit the offense). Inherent in the mens rea element is the capacity of the actor to form the requisite intent.

As Justice Roberts, so aptly and decisively said in Commonwealth v. Vogel, 440 Pa. 1, 15 , 268 A. 2d 90 (1970) (Opinion in Support of the Order Per Curiam) : “If mens rea, or intent, is an element of the crime . . . , the capacity to form that intent, i.e., legal sanity, must likewise be an element of the crime. Clearly ‘it is necessary, in order to prove the intent, to show that the per *115 petrator was capable of forming the requisite intent.’ Bradford v. State, 234 Md. 505, 512 , 200 A. 2d 150, 154 (1964). I therefore cannot agree with the assertion that ‘[a]n individual may intentionally kill someone, with malice aforethought,’ even though he is legally insane, i.e., legally incapable of forming the intention.”

In the landmark decision of In re Winship, 397 U.S. 358 (1970), in which the Supreme Court of the United States declared that juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with a criminal violation, Justice Brennan, who delivered the Opinion of the Court, citing Davis v. United States, 160 U.S. 469, 493 (1895), said: “ ‘ [¶] e [the defendant] is entitled to an acquittal of the specific crime charged, if upon all the evidence, there is reasonable doubt whether he was capable in law of committing [the] crime .... No man should be deprived of his life [or his liberty] under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them ... is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.’ ” 397 U.S. at 363 .

The real issue then is just what constitutes legal insanity? Where criminal intent is an element of the crime, it has been held that the Intentional commission of an act in itself unlawful creates a rebuttable presumption that the perpetrator acted with the requisite intent. Commonwealth v. Steele, 362 Pa. 427 , 66 A. 2d 825 (1949); Commonwealth v. Daynarowicz, 275 Pa. 235 , 139 A. 77 (1922). The presumption is that one intended the necessary and probable consequence of his act. See Commonwealth v. Steele, supra; Reimel, Pennsylvania Criminal Law, page 175.

Under our statutes, as under the common law, a man has the right not to stand trial or pay the penalty *116 for an act if Ms mental condition is such that he fulfills the legal test of insanity, i.e., that at the time of the commission of the crime, the defendant was so deprived of Ms memory and understanding that he was unable to comprehend the nature of his action, and “to distinguish between right and wrong” in reference to the particular act in question. M’Naghten’s Case, 1 C. & X. 130 (1843); adopted in Pennsylvania, Brown v. Commonwealth, 78 Pa. 122 (1875); see, generally, 19 P.S. §1351 et seq. Our Supreme Court has refused to abandon tMs test and to substitute in its place a psychiatrically devised rule or the so-called Durham rule. 2 Commonwealth v. Melton, 406 Pa. 343 , 178 A. 2d 728 (1962), cert. den., 371 U.S. 851 .

The mere pronouncement by medical science that the accused is “insane”, or that he is a mentally or morally weak person, or one suffering from an uncontrollable temper, is insufficient in law to constitute the defense of insanity so as to require an acquittal. Commonwealth v. Woodhouse, 401 Pa. 242 , 164 A. 2d 98 (1960); Commonwealth v. Cressinger, 193 Pa. 326 , 44 A. 433 (1899) ; Commonwealth v. Eckerd, 174 Pa. 137 , 34 A. 305 (1896); Taylor v. Commonwealth, 109 Pa. 262 (1885).

As early as 1846, our Supreme Court recogmzed that there may be circumstances where the accused, wMle not legally insane as to force an acquittal, may be so mentally affected that he is incapable of consciously forming the purpose or intent to commit a crime. Commonwealth v. Mosler, 4 Pa. 264 (1846). Early Pennsylvania cases, though not involving psychiatric testimony, indicate that our courts recognized certain circumstances which would reduce the degree of the crime. In Jones v. Commonwealth, 75 Pa. 403 *117 (1874), the Supreme Court reversed a conviction of an intoxicated defendant for first-degree murder, and entered its own verdict for murder in the second-degree. The Court reasoned: “. . . [C]auses may affect his intellect, preventing reflection and hurrying onward his unhinged mind to rash and inconsiderate resolutions, incompatible with the deliberation and premeditation defining murder in the first degree. When the evidence convinces us of the inability of the prisoner to think, reflect, and weigh the nature of his act, we must hesitate before pronouncing the degree of his offense.” 75 Pa. at 406 . It is because alcohol affects one’s mental state that the Jones court determined that degree of the appellant’s offense required reduction. See also, Commonwealth v. Hillman, 189 Pa. 548 , 42 A. 196 (1899), wherein our Supreme Court approved the trial court’s instructions to the jury permitting the jury to find defendant not guilty of murder in the first-degree, “[i]f the mental condition of the defendant was such that he could not consciously form the purpose to kill . . . .” 189 Pa. at 556 . It is interesting to note that this case was decided. 24 years after this Commonwealth approved the M’Naghten test as the law on insanity.

In the early 1960’s, two cases of our Supreme Court were of great signifance, but which later were to be inaccurately cited in support of a refusal to accept psychiatric testimony in all cases where legal insanity under the M’Naghten test could not be established. In Commonwealth v. Jordan, 407 Pa. 575 , 181 A. 2d 310 (1962), the Pennsylvania Supreme Court affirmed a conviction for first-degree murder and rejected defense counsel’s objections to the trial court’s charge on psychiatric testimony, saying that: “[E]xpert testimony is entitled to little weight as against positive facts. Expert medical opinions are especially entitled to little or no weight when based upon insufficient or (partly) erroneous facts or a feigned state of mind or an inac *118 curate past history, or upon unreasonable deductions.” 407 Pa. at 583 . The very next year, citing this language in Jordan , our Supreme Court once again rejected psychiatric testimony on the ground that “[t]he rule regarding the weight of expert testimony in this class of case is well settled.” Commonwealth v. Carroll, 412 Pa. 525, 535 , 194 A. 2d 911 (1963). In each of these cases, our Supreme Court did not, as they could have, dismiss the evidence as incompetent and inconsistent with the M’Uaghten test, but instead, grounded its decision on the determination that the testimony was entitled to “little or no weight” properly discounted by the trier-of-fact in the face of the incriminating evidence.

The first case to positively state that psychiatric testimony could not be admitted in cases where legal insanity could not be established, except at the sentencing stage where it had traditionally been accepted, was Commonwealth v. Ahearn, 421 Pa. 311 , 218 A. 2d 561 (1966). The vote of the Court was 4-3, with strong dissenting opinions by Justices Cohen and Roberts (to which Justice Jones joined). While admitting that the trier-of-fact should always have the right to dis-lieve the testimony of experts, Justice Cohen pointed out that the evidence should be admissible to show that the appellant lacked the specific intent necessary for the offense of murder in the first-degree: “I base my belief on the following reasons: (1) . . . The prosecution is required to prove beyond a reasonable doubt that a certain specific state of mind (cold bloodedness) existed in defendant at the time of the homicide, and defendant’s evidence is logically very relevant on that issue. (2) Other jurisdictions that firmly adhere to M’Naghten’s rule, regarding insanity as a complete defense to criminal responsibility, nevertheless, admit this kind of evidence to show that the state of mind specifically required by the definition of first degree murder *119 did not exist in defendant at the time of the crime. See, e.g., California decisions: People v. Henderson, 386 P. 2d 677 (1963); People v. Gorshen, 336 P. 2d 492 (1959); People v. Wells, 202 P. 2d 53 (1949) ; Iowa: State v. Gramenz, 126 N.W. 2d 285 (1964); Colorado: Battalino v. People, 199 P. 2d 897 (1948) (containing many other cases); New Jersey: State v. DiPaolo, 168 A. 2d 401 (1961). (3) The evidence cannot be excluded on the basis of the general unreliability (as opposed to lack of weight in a particular case because of cross-examination or lack of foundation, etc.) of the ‘science’ of psychiatry when one considers the universal acceptance of such evidence on the issue of legal insanity which completely negates criminal responsibility. (4) Evidence of intoxication, use of drugs, etc., is admitted where it is introduced for the purpose of creating a reasonable doubt regarding the existence of first degree murder state of mind. Commonwealth v. McCausland, 348 Pa. 275 , 35 A. 2d 70 (1944). How can we admit such evidence in behalf of a willful intoxicant but not in behalf of an individual who, through no fault of his own, has a mental disorder? (5) All thoughtful commentators I have read have come to the same conclusion. (Citations omitted). (6) I have found no persuasive reasons against admission.” 421 Pa. at 330-331 .

Following Ahearn , two later decisions on the same issue, Commonwealth v. Rightnour, 435 Pa. 104 , 253 A. 2d 644 (1969), and Commonwealth v. Phelan, 427 Pa. 265 , 234 A. 2d 540 (1967), passed by the same 4-3 split. In each case, the majority traced Ahearn and its predecessors, saying that precedent supported limiting the introduction of psychiatric testimony in order to establish legal insanity. Justice Roberts, in his dissent to Phelan , keenly observed that such was not the case, but that, in fact, Ahearn had established new law on the subject. At 283-284 of the opinion, Justice Roberts called the case “. . . a departure from prior Penn *120 sylvania law ... I could not sanction then and cannot now. In several of the cases cited by the Ahearn majority on the admissibility issue, the court did permit the psychiatrist to give his expert opinion as to the defendant’s state of mind .... In each of these cases [Carroll and Jordan] we merely questioned the weight to be accorded such evidence and did not rule that the evidence was inadmissible.” (Emphasis added.)

When the next case was argued before the Court, a 3-3 split resulted (Justice Cohen died in the interim). Commonwealth v. Weinstein, 442 Pa. 70 , 274 A. 2d 182 (1971). The same vote was recorded in the last line of Ahearn cases. See, Commonwealth v. Tomlinson, 446 Pa. 241 , 284 A. 2d 687 (1971).

Then, in 1972, the Supreme Court of Pennsylvania made the first serious inroad into the Ahearn cases. 3 *121 In a 5-2 decision, 4 and while carefully emphasizing that the M’Naghten test was still the law of legal sanity in Pennsylvania, the Court adopted a partial rule of diminished responsibility, reflecting “a natural and logical application of the orderly and authoritative development of the law of evidence in such cases.” Commonwealth v. McCusker, 448 Pa. 382, 395 , 292 A. 2d 286 (1972).

The specific issue before the Court, in McCuslcer, was “whether psychiatric evidence is admissible in a murder prosecution for the limited purpose of determining whether a defendant acted in the heat of passion.” 448 Pa. at 384 . While the Court dealt only with the question of the admissibility of psychiatric testimony in determining whether a murder conviction should be reduced to voluntary manslaughter because the element of malice was not present, we believe that the clear meaning and interpretation of the case should be extended to affect the rights of the accused to prevent his conviction on charges of an offense which requires proof of specific intent or malice, where psychiatric testimony establishes that the accused was incapable of forming such an intent. If the accused lacks *122 the capacity to form an intent to commit a mens rea crime then it cannot he said that society may punish the individual for the proscribed act. The Commonwealth must prove intent as an element of the crime, and the mere act is insufficient to sustain a conviction under these circumstances.

As Justice Roberts said in McCusker , at 448 Pa. 391 -393: “[hjere the sole and dispositive issue in controversy at trial was appellant’s state of mind at the time of the slaying. The Commonwealth’s theory was that appellant acted with malice, while appellant sought instead to prove that he acted without malice and in the heat of passion ....

“Our courts have admitted psychiatric evidence to determine, under the M’Naghten test, whether defendant was sane at the time of the crime. Thus we receive psychiatric evidence where its potential effect may be to support a finding of insanity — and thus provide a basis for a not guilty verdict. Similarly psychiatric evidence is admitted and indeed virtually controlling when the determination to be made is defendant’s mental capacity to stand trial. Finally, such evidence has long been admissible at the penalty stage of the trial.

“Surely the reliance we have consistently placed upon the competence of psychiatric evidence belies any concern that it is not a sufficiently recognized and accepted medical science capable of offering quality expert guidance ....

“It would indeed be anomalous to receive psychiatric evidence — as our courts do — to establish the complete defense of insanity but at the same time reject psychiatric evidence which seeks to establish only a partial defense by showing that defendant acted in the heat of passion when he committed the homicide .... In many ways the argument for admitting psychiatric evidence to determine whether a defendant acted in the heat of passion . . . resulting in part from mental disor *123 ders is entitled to at least the same recognition and consideration as is presently accorded a defense relying on the conditions engendered by drugs and alcohol.”

The Commonwealth, in the instant case, argues that MeCusker should be read restrictively and that it should be applied only to cases involving a question of whether a murder charge may be reduced to voluntary manslaughter. However, in permitting psychiatric evidence as proof of a partial defense (in addition to the M’Nligh-ten test), our Supreme Court recognized that it was adopting “two totally separate concepts” to which a number of other jurisdictions have subscribed uniformly throughout their criminal cases. 5

In reality, diminished responsibility goes to a different issue than does the M’Naghien rule. M’Nagh-ten’s test is not utilized to demonstrate evidence that the defendant lacked the specific intent or malice necessary to convict him of a given offense. It was established to determine the defendant’s culpability, based on his capacity to distinguish between “right and wrong”. If a defendant meets the M’Naghien test, he is acquitted on all charges. Diminished responsibility is a separate concept. It acts as a partial defense, merely reducing the degree of the offense because the defendant is unable to form the specific intent necessary for the greater offense. Jurisdictions which employ both the M’Naghten test and the diminished responsibility rule have adequately distinguished them. Illustratively, the Utah Supreme Court, in State v. Greene, 6 P. 2d 177 (1931), said: “While an accused is not entirely relieved from responsibility for the commission of a crime on account of insanity unless the insanity be of such a nature and degree that he did not know the nature or quality of his acts, or that he did *124 not know that the act was wrong . . . nevertheless a mental disease falling short of any of these effects may, where a particular intent is a necessary element of a higher degree of crime have the effect of reducing the degree of such crime.” 6 P. 2d at 186 .

It cannot be said that the state of mind of the accused is only relevant in a murder charge. In every offense where mens rea is an element of the crime, the question of whether the perpetrator had sufficient capacity to form an intent to commit the offense is crucial. If competent psychiatric evidence can be produced to negate that capacity, the Commonwealth may not succeed in prosecuting its case. I believe that the reason McOusker did not rule on psychiatric testimony to negate specific intent was that the issue was not directly in question under the facts of that case. There is no logical reason why evidence should be admitted to show that the defendant’s state of mind negated the specific intent of murder and supplanted by the “heat of passion”, but refuse to permit testimony to show that the mind of the defendant was so diseased or defective as to preclude his ability to form the specific intent or malice essential to constitute a given offense. I believe that McOusker sounds the “death knell” to the Ahewrn decisions, and reflects a sound and enlightened view that the admission of psychiatric testimony in some instances, while excluding it in other crucial circumstances, is without reason or logic. 6

*125 Existence of psychiatric evidence requires the trial court to instruct the jury on either or both the M’J'Iligh-ten test or the doctrine of diminished responsibility. The issue remains a matter for jury deliberation. It is the jury’s unassailable function to rule on credibility and the weight which it will accord that testimony. Furthermore, even should the jury determine that the defendant may only be convicted on the lesser offense, our Legislature has provided mental health and rehabilitation measures by which “the Commonwealth, if it decides the interest of society and the individual so require, may move to have the defendant committed to a mental institution — even beyond the sentence limit —so long as he needs treatment.” Commonwealth v. McCusker, supra at 394; Mental Health and Retardation Act of 1966, Special Sess. No. 3, October 20, P. L. 96, Art. IV, §406, 50 P.S. §4406.

The defendant should be permitted to introduce credible psychiatric evidence which raises either legal insanity or diminished responsibility. While it is true that the Commonwealth enjoys what is termed a “presumption of sanity” in every criminal case, it must be remembered that a presumption is not evidence. If a jury believes that the defendant has offered sufficient evidence to prove “insanity” or his mental inability to form the requisite intent at the time of the crime by a preponderance of the evidence, that presumption vanishes.

In the instant case, the appellant should not have been convicted of assault with the intent to maim and aggravated assault and battery, if the jury were to conclude that at the time of the offense he lacked the capacity to form the specific intent and/or the malice *126 requisite to commit those offenses. 7 The firearms convictions require only a general intent, and the issues herein do not affect those convictions whatsoever. The jury should have been instructed on both the M’Naghten standard and on the question of defendant’s inability to form a specific intent or malice to commit the two aforementioned crimes on the basis of psychiatric evidence produced at trial. The jury should be instructed that, if they determine that such intent or malice was lacking due to mental disorder, then they should fur- *127 tlier be instructed that a conviction may be returned on the lesser offense of simple assault and battery. As defendant offered psychiatric evidence on the question of Ms sanity, the jury should, in addition, deliberate with the understanding that if it believes by a fair preponderance of the evidence that the defendant was acting under a “diminished capacity”, the presumption of sanity vanishes in the face of this contradictory evidence.

The judgments of sentence should be reversed, and the case remanded for a new trial consistent with this opinion. 8

Appellant also calls attention to certain of the district attorney’s remarks and comments during the conduct of the trial and in closing argument. Each of these remarks, which were objected to by defense counsel, were improper and inflammatory. An examina *114 tion of the notes of testimony reveals, however, that the trial court was careful to strike these remarks and give the jury cautionary instructions to disregard these remarks altogether as being irrelevant or whoUy improper. We believe that the trial court by its instructions cured the effect of the district attorney’s improper remarks, and that this ground for reversal may not stand. Commonwealth v. Lowery, 440 Pa. 361 , 269 A. 2d 724 (1970) ; Commonwealth v. Ross, 403 Pa. 358 , 169 A. 2d 780 , cert. den. 368 U.S. 904 (1961).

Durham v. United States, 214 F. 2d 862 (D.C. Cir. 1954), 45 A.L.R. 2d 1430 .

I am puzzled by the conclusion reached by the Majority of this Court that “McCusker does not represent a departure from this line of cases [Ahearn progeny].” 228 Pa. Superior Ct. at 91. The Majority recognizes that prior to McCuslcer, psychiatric testimony was admissible “. . . in only two instances: to determine legal insanity as grounds for complete acquittal and to arrive at an appropriate sentence for a particular defendant.” 228 Pa. Superior Ct. at 90. (Emphasis added.) While McCuslcer ostensibly was limited to allowing psychiatric testimony to reduce a charge of murder to voluntary manslaughter, the effect was a devastating erosion of prior ease law. For the first time, the Supreme Court of Pennsylvania decided that psychiatric testimony could be admitted to reduce the degree of the offense because of a “diminished capacity.” The evidence was not admitted to acquit a defendant or to affect sentencing, but was the basis for an actual reduction in the degree of the crime charged. If we were to literally read the language cited by the Majority from McCuslcer, to wit: “[T]his Court has traditionally allowed an accused to offer testimony in an effort to establish his state of mind at the time of the crime,” the inescapable conclusion would be that the issue presented in the instant appeal would perforce be decided in appellant’s favor. Appellant asks that a jury consider psychiatric testimony that tends to prove that his “state of mind at the time of the crime” *121 was so affected that he could not form the specific intent or malice necessary to sustain convictions on the charges against him. Indeed, this dissent argues, infra, that such reasoning should be applied herein, as a logical extension of McCuslcer. As Justice Roberts said in McCusker, 448 Pa. at 391 : “Here the sole and dis-positive issue in controversy at trial was appellant’s state of mind at the time of the slaying. . . . Surely the admission of relevant and probative psychiatric evidence would have aided the jury in resolving those conflicting claims.”

Because of the vacancies left by Justice Cohen, and Chief Justice Bell (who retired in 1971), Justices Nix and Manijerino were appointed to the Court. The McCuslcer majority consisted of Justice Roberts (who delivered the Opinion of the Court), Chief Justice Jones, and Justices Pomeroy, Nix and Manderino. A dissenting opinion by Justice Hagen was joined by Justice O’Brien.

See, dissenting opinion by Justice Cohen in Commonwealth v. Ahearn, supra.

It is of interest to note the development and extent of the acceptance of the diminished responsibility test in California. The first case accepting psychiatric testimony where legal insanity could not be established was People v. Wells, supra, which permitted such testimony to reduce the charge of murder to voluntary manslaughter. Ten years later, in People v. Gorshen, supra, the theory was expended to negate malice. People v. Castillo, 449 P. 2d 449 (1969), followed Gorshen , and stated that testimony should be admissible to negate crimes of specific intent. The doctrine of dim *125 inished responsibility today is so imbedded in the law of California that the Supreme Court has reversed convictions where the defense has failed to raise the defense in criminal cases. See, e.g., People v. Welborn, 257 Cal. 513 , 65 Cal. Rptr. 8 (1967).

It must be emphasized here that the Majority Opinion fails to identify the crucial distinction between the M’Naghten test and the “diminished responsibility” doctrine. This dissent has attempted to identify that difference, and the increasing number of jurisdictions that have embraced both doctrines as clear and “separate concepts”. In affirming the appellant’s convictions, and in concluding that the attack on the trial court’s instructions to the jury “would add nothing of substance to this appellant’s case . . .”, the Majority settles upon a false syllogism: “An individual without capacity to understand the nature and quality of his acts is in essence one who cannot intend specific harm. . . This may be true. But, the appellant argues, and I must agree, that the opposite is not necessarily true, i.e., that one who does not intend to do specific harm acting under a mental disability, is necessarily devoid of an understanding of the nature and quality of his acts or the ability to know right from wrong (M’Naghten’s test). The basis for reduction of the degree of the offense is a lesser and not a greater standard than the test by which complete acquittal may be obtained. Acknowledging that the charge of aggravated assault and battery requires a showing of malice, the Majority, in my opinion, errs when it states that “[pjroof that appellant’s mental condition was such that he was incapable of the state of mind necessary to find malice, i.e., incapable of intending harm or acting wantonly knowing that harm might result, is equivalent to proof that he cannot understand the nature and consequences of his acts.” The equation does not compute when legal arithmetic is employed. To do so would be to say that every individual who lacks the intent to commit a crime is legally insane. For if such is the conclusion then it would be a miscarriage of justice to hold culpable those individuals charged with crimes of general intent, such as simple assault and battery.

While the weapons convictions, pointing a firearm and violation of the Uniform Firearms Act, are unaffected by this opinion, in substance, a new trial would require a remand for sentencing, as the elimination of the more serious offenses and conviction on the lesser offense would require a reconsideration of all the originally imposed sentences. Commonwealth v. Lockhart, 223 Pa. Superior Ct. 60 , 296 A. 2d 883 (1972).