concurring and dissenting.
Today the majority puts a chink in the heretofore impregnable Fifth Amendment to the Federal Constitution. It does so by finding no ineffectiveness on the part of counsel who allowed the prosecution to introduce incriminating statements made by his client to an agent of the prosecution without the benefit of Miranda warnings. I am compelled to dissent.
There is a critical distinction between having an expert testify to the results of an examination and having him testify to actual statements made by a defendant. Appellant pled guilty to homicide in general; not to any specific degree. She admitted the act of killing but not the mental state accompanying the act. Consequently, at the degree of guilt hearing, the court was required to de*1365termine whether Appellant was guilty of first-degree murder, third-degree murder, voluntary manslaughter or even involuntary manslaughter.
It is well-established that, as a general principle, all crimes involve two essential elements: the “act” (sometimes referred to as actus reus) and the “guilty mind” (sometimes referred to as mens rea). A person cannot be convicted of a crime without proof of both essential general elements. In each of the types of homicide, the “act” is the unjustified killing of a human being. The mens rea of each of the types of homicide however is different. In first-degree murder, defined in 18 Pa.C.S.A. section 2502(a), it is an intentional killing. Intentional killing is further defined as “willful, deliberate and premeditated.” 18 Pa.C.S.A. § 2502(d). Third-degree murder is defined in section 2502(c) of the Crimes Code as all other kinds of murder. Murder, although not defined by the Crimes Code, is defined by case law as a killing committed “at the very least with malice aforethought.” Commonwealth v. Reilly, 519 Pa. 550, 564, 549 A.2d 503, 510 (1988). Furthermore, malice may be found to exist “where there is a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” Id. (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868)).
The mens rea of voluntary manslaughter is defined in section 2503(a) of the Crimes Code as “sudden and intense passion resulting from serious provocation.]” Finally, the mens rea for involuntary manslaughter is defined in section 2504(a) of the Crimes Code as acting in a “reckless or grossly negligent manner[.]” Consequently, the mens rea for homicide varies in degree from “willful, deliberate and premeditated” all the way down to merely recklessness or gross negligence.
Appellant pled guilty only to the “act”, not to the mens rea. It was for the trial court to determine the mens rea at the degree of guilt hearing. Therefore, Appellant cannot be said to have pled guilty to any of the specific types of homicide, and Appellant’s plea could not be considered a conviction until the degree of guilt hearing was concluded and a result was reached by the court as to the specific type of homicide. This distinction is crucial because the evidence presented at the degree of guilt hearing necessarily involved proof of an essential element of the crime, the mens rea and, therefore, bore significantly on the issue of guilt.
The Commonwealth sought to prove that Appellant committed first-degree murder and, therefore, offered evidence to prove Appellant’s specific intent to kill, that is, that Appellant acted willfully, deliberately and with premeditation. Appellant, on the other hand, presented the defense of diminished capacity. This defense concedes the act, which was consistent with Appellant’s guilty plea, but seeks to negate the mens rea of first-degree murder. Commonwealth v. Anderson, 410 Pa.Super. 524, 600 A.2d 577 (1991), alloc. den., 531 Pa. 644, 612 A.2d 983 (1992). Because Appellant sought to establish diminished capacity through expert psychiatric testimony, and Appellant thought another psychiatrist would support her claim, Appellant joined the Commonwealth in requesting a court-ordered psychiatric examination.
At the conclusion of the degree of guilt hearing, the trial court found that the Commonwealth had satisfied its burden beyond a reasonable doubt that Appellant had acted with the specific intent to kill, that is, the Commonwealth had proven the mens rea required to find Appellant guilty of first-degree murder.
The Commonwealth has argued strenuously for the admission of the statements made by Appellant, as testified to by Dr. Kool, by citing numerous decisions of the federal courts concerning their use in hearings to determine the sanity of a defendant. I find those decisions to be both distinguishable from our present ease and illustrative of the deep concern the federal courts have expressed with regard to this type of evidence. *1366Unlike a diminished capacity defense which seeks to negate the mens rea element of the crime, a sanity defense focuses not on the elements of the crime but the legal sanity of the accused at the time the offense is committed. Legal insanity is defined as:
[t]he actor was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.
18 Pa.C.S.A. § 315(b). Insanity is a complete defense to the crime involved, although rather than being automatically released, as in other acquittals, a defendant will be examined under the Mental Health Procedures Act, 50 P.S. section 7301 et seq., to determine whether he should be committed for treatment. When an insanity defense is presented, the court does not examine the elements of the crime to determine if a defendant has negated any of those elements. For this reason, the admission of the statements of the accused to a psychiatrist on the issue of sanity are logically distinct from statements which could be used to determine the accused’s guilt. An insane person has the capacity to kill with specific intent. That is, he can premeditate, act willfully and deliberate. What relieves him from responsibility is that he does not know the nature and quality of the act or does not know that the rest of society considers it to be wrong. For that reason, any statements made by one claiming insanity concerning the killing itself are superfluous; they are not necessary to prove the mens rea or actus reus. “[I]n a plea of not guilty by reason [of] insanity the defendant acknowledges guilt.” Commonwealth v. Trill, 374 Pa.Super. 549, 601, 543 A.2d 1106, 1132 (1988), (alloc. den., 522 Pa. 603, 562 A.2d 826 (1989) (Concurring Opinion by Beck, J.)). The person claiming insanity says “yes, I did it, and I intended to do it, but I did not know the nature and quality of my act or I did not know it was wrong.” As the Fifth Circuit Court of Appeals stated in United States v. Leonard, 609 F.2d 1163, 1165-66 (5th Cir.1980):
... Because sanity at the time of the commission of the alleged offense bears heavily on the issue of guilt, it implicates Fifth Amendment concerns. Thus, there is a sharp distinction between the use of the defendant’s statements made during a court-ordered psychiatric examination on the issue of sanity and the use, before the “fact finders” (here a jury), of incriminating statements made during such psychiatric examination on the issue of guilt and before guilt had been determined. See Gibson v. Zahradnick, 581 F.2d 75, 78 (4th Cir.1978), cert. den. 439 U.S. 996, 99 S.Ct. 597, 58 L.Ed.2d 669 (1978); United States v. Bennett, 148 U.S.App.D.C. 364, 370-72, 460 F.2d 872, 878-80 (D.C.Cir.1972). Therefore, central to the court’s authority to order a defendant to submit to a psychiatric examination is what we believe to be a clear understanding that the function of the statements obtained during the examination is limited to the sanity issue.
There is another obvious rationale behind the rule. Both the Government and the defendant may need the assistance of expert testimony of the issue of sanity. In many cases, psychiatrists would not be able to obtain reliable testimony unless they were free to inquire into the prior conduct of the defendant, including his participation in the criminal activity with which he is charged. Moreover, the psychiatric inquiry cannot succeed unless the defendant cooperates; a defendant’s mental condition would not be discovered in many instances unless the psychiatrist can engage in a candid conversation with the defendant about it. Therefore, it may be appropriate and even in some eases necessary for the psychiatrist, [wjhen testifying on the issue of sanity, to disclose the criminal activity related to him by the defendant. [footnote omitted.]
The Commonwealth argues that the federal cases drawing a distinction between determinations of sanity and issues of guilt are based upon a rule of federal criminal procedure and a federal statute which have either been repealed or amended since those decisions *1367were issued. I recognize that the wording of Fed.R.Crim.P. 12.2, which requires defendants to give notice of a mental condition defense, has been amended over the course of the years; however, the rationale behind the rule and the spirit of its language has not been altered so as to make a fundamental change in the underlying principle for which it stands. At the time of the Leonard decision the rule read in pertinent part as follows:
No statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.
Fed.R.Crim.P. 12.2(c) (as cited in United States v. Halbert, 712 F.2d 388, 389 (9th Cir.1983)). In 1983, the pertinent portion of the rule was amended to read as follows:
No statement made by the defendant in the course of any examination provided by this rule, whether the examination be with or without the consent of the defendant, no testimony by the expert based upon such statement, and no other fruits of the statement shall be admitted in evidence against the defendant in any criminal proceeding except on an issue respecting mental condition on which the defendant has introduced testimony.
Fed.R.Crim.P. 12.2(c) as amended. This is the current language of the rule as well. It is clear from the plain language of this rule that Congress was drawing a distinction between use connected with sanity determinations and other uses concerned with the determination of guilt and protecting the accused’s sacred Fifth Amendment right against self-incrimination by limiting the use of evidence gathered as a result of court-ordered psychiatric examination. As further evidence of this concern, the advisory committee action notes following the rule, concerning the 1975 amendment, state:
The purpose of this rule is to secure the defendant’s fifth amendment right against self-incrimination. See State v. Raskin, 34 Wis.2d 607, 150 N.W.2d 318 (1967). The provision is flexible and does not totally preclude the use of such statements. For example, the defendant’s statement can be used at a separate determination of the issue of sanity or for sentencing purposes once guilt has been determined. A limiting instruction to the jury in a single trial to consider statements made to the psychiatrist only on the issue of sanity would not satisfy the requirements of the rule as amended. The prejudicial effect on the determination of guilt would be inescapable.
Notes of Committee on Judiciary on 1975 Amendments to Rule (House Report No. 94-247)(B). Furthermore, in the comments concerning the 1983 amendment on subdivision (c), it is stated:
The last sentence of subdivision (c) has been amended to more accurately reflect the Fifth Amendment considerations at play in this context. See Estelle v. Smith, 451 U.S. 454 [101 S.Ct. 1866, 68 L.Ed.2d 359] (1981), holding that self-incrimination protections are not inevitably limited to the guilt phase of a trial and that the privilege, when applicable, protects against use of defendant’s statement and also the fruits thereof, including expert testimony based upon defendant’s statements to the expert. Estelle also intimates that “a defendant can be required to submit to a sanity examination,” and presumably some other form of mental examination, when “his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case.”
Notes of Advisory Committee on 1983 Amendments to Rules.
It is clear from the historical background of the rule and cases interpreting it that to sweep away the carefully crafted distinction made by the federal courts in this area is to determine guilt by tainted statements obtained from an accused in violation of her Fifth Amendment right against self-incrimination.
*1368The majority relies on cases which hold that when a defendant places his sanity at issue, he may be subjected to compulsory examination by a court-appointed psychiatrist, and that psychiatric testimony may be introduced at trial to rebut the insanity defense without violating the Fifth Amendment. Under the M’Naughten rule, see 18 Pa. C.S.A. § 315, which governs the insanity defense in this Commonwealth, a defendant is legally insane and absolved of criminal responsibility if, at the time of committing the act, due to a defect of reason or disease of mind, the accused either did not know the nature and quality of the act or did not know that the act was wrong. Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991).
But the issue here is not insanity; the issue is diminished capacity to form the specific intent to kill. Appellant does not claim that due to a defect of reason or disease of mind she did not know the nature and quality of the act or that if she did, she did not know the act was wrong. Rather, she maintains that she had a weakened ability to form the specific intent to kill necessary for first-degree murder. In effect, Appellant claims that she had a weakened ability to act willfully, deliberately, and with premeditation. By her plea of guilty to homicide generally, all she admitted was the act of killing, and by not claiming insanity, Appellant acknowledged that the killing did not occur because of a defect of reason or disease of mind which caused her either not to know the nature and quality of her act or, if she did know the nature and quality of the act, that she did not know the act was wrong. It remained for the Commonwealth to prove whether the killing was first or third degree murder, or voluntary or involuntary manslaughter. Commonwealth v. Weaver, 500 Pa. 439, 457 A.2d 505 (1983) (an accused offering evidence under the theory of diminished capacity concedes general criminal liability). I therefore must dissent from the majority holding on this issue.
I do, however, agree with the majority’s discussion and analysis of the issue of whether Appellant should have been compelled to submit to a court-ordered psychiatric examination, and therefore, join that portion of the majority’s opinion.
CAVANAUGH and JOHNSON, JJ., join.