dissenting opinion of Mr. Justice Roberts, joined by Nix and Manderino, JJ.
How later courts described this case
- dissenting opinion of Mr. Justice Roberts, joined by Nix and Manderino, JJ.
- plurality Per Curiam and Dissenting Opinions in accord as to this
- subject matter in dispute undisturbed where “no majority can be mustered to do otherwise”
Written by the judges who cited it.
The opinion
JONES, Chief Justice
(concurring).
I concur in the per curiam order entered today, however, I rest my concurrence on the grounds that the issue presented has in fact been “finally litigated.” See, Sections 3 and 4 of the Post Conviction Hearing Act, Act of 1966, January 25, P.L. (1965) 1580, 19 P.S. 1180-3, 4.
I agree with the majority’s interpretation that under the Post Conviction Hearing Act, a matter will not be deemed to be “finally litigated” where the vote on an issue qualifying one for relief under subsection 3(c) (12) of the Act was equally divided on direct appeal. However, it is my belief that the issue raised by appellant Rightnour does not, in the first instance, qualify under the aforementioned subsection.
The holding in Commonwealth v. McCusker, 448 Pa. 382 , 292 A.2d 286 (1972), very narrowly stated that ex *112 pert psychiatric testimony is relevant and admissible on the issue of whether a defendant prosecuted for murder acted in the “heat of passion.” 448 Pa. at 384 , 292 A.2d at 289 . The McCusker decision in no way ruled on the availability of a defense to murder such as that advanced by appellant Rightnour; that is, the defense of a “diminished capacity.” McCusker in my view being inapplicable, there are no retroactive changes in the applicable law such that post-conviction relief under subsection 3 (c) (12) of the Act could be invoked.