Com. v. DuPont

730 A.2d 970

1999 Pa. Super. 88

COMMONWEALTH of Pennsylvania, Appellee, v. John E. duPONT, Appellant.

Superior Court of Pennsylvania.

Argued March 9, 1999.

Filed April 20, 1999.

Reargument Denied June 29, 1999.

Vincent J. Grogan, Pittsburgh, for appellant.

Alan Dershowitz, Cambridge, MA, for appellant, pro hac vice.

Laurie Magid, Asst. Dist. Atty., Media, for Com., appellee.

Before KELLY, LALLY-GREEN and BROSKY, JJ.

BROSKY, J.

¶ 1 John E. duPont appeals from judgment of sentence imposed after a jury found him guilty, but mentally ill, of third degree murder¹ and simple assault.² For the reasons which follow, we affirm the judgment of sentence.

¶ 2 Prior to his arrest in January 1996, appellant resided on an 800-acre estate known as "Foxcatcher Farm" located in Delaware County. For many years appellant operated a wrestling training facility on the premises, and provided housing on the estate to some of the wrestlers who trained at his facility and were members of "Team Foxcatcher," a wrestling team founded by appellant.

¶ 3 People who knew appellant noticed a change in his behavior and emotional state around the time of his mother's death in 1988. Appellant became extremely security conscious, and hired a security firm in 1993 to provide protection on the estate. Despite the firm's efforts implementing extensive security measures, appellant exhibited paranoid fear on several occasions that he was being spied upon and that his life was in danger.³ Several witnesses also related incidents of appellant's drug and alcohol abuse between 1988 and 1995. In spite of his unusual behavior, however, appellant continued to manage his facility and maintain the daily operations.

¶ 4 Over time appellant developed close relationships with some of the wrestlers at his facility, and came to dislike others. He began to exhibit animosity toward David Schultz, a successful wrestler and also one of the facility's wrestling coaches, sometime in 1995. On the afternoon of January 26, 1996, appellant went to the residence of Mr. Schultz accompanied by one of the estate security consultants, Patrick Goodale. Mr. Schultz was working on his car, but greeted appellant on his arrival. Appellant asked Mr. Schultz, "You got a problem with me?" and shot him three times with a .44 Magnum revolver. He also pointed the weapon at Mr. Goodale and toward Mr. Schultz' wife who was in the house. Appellant then fled in his vehicle to his mansion, reloaded and locked up his weapon, and refused to surrender to police. During the two day standoff which followed, appellant spoke with his attorney on numerous occasions. He was finally apprehended on January 28, 1996 when he left the mansion to attempt a repair of the heating system.

¶ 5 On February 9, 1996 the trial court ordered a competency examination, which was completed on September 9, 1996.⁴ Following a hearing on appellant's competency, the trial court determined appellant to be incompetent to proceed to trial⁵ by order of September 24, 1996. He was remanded to the Norristown State Hospital for treatment. A second competency hearing was held in December 1996, and the trial court determined that appellant was then competent to proceed to trial, which began in January 1997.

¶ 6 At trial, appellant did not dispute that he shot Mr. Schultz, but put forth a defense of insanity. Following the guilty but mentally ill verdicts, he was sentenced on May 13, 1997 to a term of imprisonment of thirteen to thirty years on the murder conviction and a concurrent term of three to six months on the assault conviction; an order for costs was also imposed. Post trial motions were denied by the trial court on October 17, 1997 and this appeal followed.

¶ 7 Appellant raises the following issues for our review:

I. The trial court erred in permitting the Commonwealth's psychiatric expert to testify in violation of both the psychiatrist-client and attorney-client privileges, where the witness previously was consulted about duPont's mental condition;

II. Pennsylvania's statutory framework for not guilty by reason of insanity and guilty but mentally ill determinations was not followed in this case; those laws - as they were applied - violate the due process, equal protection, and cruel and unusual punishment provisions of the constitution;

III. The trial court erred in allowing the Commonwealth to admit evidence of duPont's alleged prior bad acts;

IV. duPont is entitled to a new trial because hearsay was admitted in violation of the expert testimony rule and duPont's constitutional right of confrontation;

V. The court below erred in permitting the prosecutor to argue that the jury could draw an inference against the defendant because the defense had presented only portions of a videotaped interview and in instructing the jury that such an inference would be proper VI. duPont was prejudiced by the use of a misleading verdict sheet containing written jury instructions;

VII. The sentence should be vacated as unreasonable and because the bill of costs is excessive.

I. The Commonwealth's Psychiatric Expert Witness

¶ 8 We first address appellant's contention that the trial court erred in permitting the Commonwealth to present testimony of Dr. John O'Brien as a psychiatric expert on appellant's mental condition. The trial court had originally appointed Dr. O'Brien in March 1996 as one of two physicians to examine appellant in connection with his competency to stand trial. Defense counsel objected to his appointment but the reasons therefor do not appear on the record. The trial court did, however, vacate Dr. O'Brien's appointment based on the objection, and replaced him with a different doctor.

¶ 9 At the September 1996 competency hearing, Dr. O'Brien was called to testify as an expert witness for the Commonwealth. The defense again objected and made an oral motion to disqualify him as a witness, this time referring to some past relationship between Dr. O'Brien and appellant. The trial court heard argument by counsel, summarized on the record the limited previous connection between Dr. O'Brien and appellant,⁶ and denied the motion to disqualify. As stated above, the trial court found appellant was not competent in September 1996 to proceed to trial, but after treatment the court did determine he was competent in a subsequent hearing in December 1996.

¶ 10 In his defense, appellant presented extensive evidence that he suffered from mental illness, specifically paranoid schizophrenia. This evidence included his delusional beliefs, particularly during the standoff and in examinations after the shooting, that he was Jesus Christ, the Dalai Lama, and a Russian czar, among others. Appellant's expert witnesses opined that he was insane at the time he shot Mr. Schultz.

¶ 11 On rebuttal, the Commonwealth called Dr. O'Brien to testify as one of their expert psychiatric witnesses, and the trial court reiterated on the record that the defense motion to disqualify him from testifying was denied. No written form of this motion nor any accompanying supporting documents were ever filed of record.⁷ Dr. O'Brien testified that, in his opinion, appellant did suffer from mental illness but was not insane at the time Mr. Schultz was shot. The Commonwealth's other expert, Dr. Park Dietz, provided a similar opinion.

¶ 12 Appellant contends on appeal that the trial court erred when it permitted the Commonwealth to present Dr. O'Brien's testimony in light of his previous connection to appellant. He argues that both the psychiatrist-patient privilege, 42 Pa.C.S. § 5944, and the attorney-client privilege, 42 Pa.C.S. § 5916, have been violated by admission of this testimony.

¶ 13 Dr. O'Brien testified that four years earlier, in December 1992, he had attended a conference with two other psychiatrists and Mr. Wochok, an attorney for appellant. Dr. O'Brien, who was often involved with involuntary civil commitment of persons, was present at the request of one of the other physicians. The conference lasted approximately one hour, and Dr. O'Brien recalled only that they discussed possible means of obtaining a psychiatric evaluation of Mr. duPont, that duPont probably used cocaine, and that duPont had once fired a weapon inside his home.

¶ 14 Dr. O'Brien never met, spoke with, or saw Mr. duPont, did no evaluation or treatment of him, and did not even know appellant was the same duPont who had been the subject of the 1992 conference until trial counsel raised the question. Dr. O'Brien had no memory of specific communications made during the course of the conference, nor had any other independent recollection of the meeting.

¶ 15 The psychiatrist-client privilege as set forth in § 5944 provides in relevant part as follows.

No psychiatrist ... shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychiatrist and his client shall be on the same basis as those provided or prescribed by law between attorney and client.

42 Pa.C.S. § 5944 (emphasis added). In Commonwealth v. Fewell, 439 Pa.Super. 541, 654 A.2d 1109 (1995), this court stated:

The privilege afforded by § 5944 was intended to inspire confidence in the client and to encourage full disclosure to the psychologist [and psychiatrist]. By preventing the latter from making public any information which would result in humiliation, embarrassment or disgrace to the client, the privilege is designed to promote effective treatment and to insulate the client's private thoughts from public disclosure.

654 A.2d at 1112-13 (quoting Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120, 129 (1987), appeal denied, 518 Pa. 617, 541 A.2d 744 (1988)).

¶ 16 The privilege is clearly designed for protection of confidential communications from a client to his physician. Commonwealth v. Simmons, 719 A.2d...