Commonwealth v. Geschwendt

*136 ROBERTS, Justice,

dissenting.

I dissent.

I

This case does not in any respect depend, as asserted by the opinion announcing the judgment of the Court, upon application of the Court’s decisions in Commonwealth v. Brown, 494 Pa. 380 , 431 A.2d 905 (1981), and Commonwealth v. Mulgrew, 475 Pa. 271 , 380 A.2d 349 (1977). Rather, this case is governed by law which has existed in our Commonwealth for more than a century. By focusing exclusively upon the trial court’s refusal to explain the consequences of a verdict of not guilty by reason of insanity, as occurred in Brown and Mulgrew , the opinion announcing the judgment of the Court ignores the critical fact that here the court’s refusal was premised upon its simultaneous, erroneous refusal to honor the fundamental request of appellant that the jury be instructed “regarding the specific alternative possibility of a verdict of not guilty by reason of insanity.” 1 Because appellant’s sanity was a central issue, upon which substantial evidence was offered by both the defense and prosecution, appellant was statutorily entitled to an instruction that would have informed the jury of its right to return a verdict of not guilty by reason of insanity.

In its charge to the jury, the trial court instructed only that the jury should return a verdict of either guilty or not guilty:

“If you return a verdict of guilty, we will assume it is as to all of the six informations. If you return a verdict of not guilty, we will likewise assume that it applies to all of the six informations. For that reason, if you would conclude, based upon such facts as you accept to be credible, that the defendant is guilty of some of the deaths that occurred but not guilty as to others, we expect you to so specify in the verdict if, in fact, you render one.

*137 I would suggest that the verdict be returned in the form of the foreperson saying words to the effect that, ‘We, the members of the jury, find the defendant not guilty,’ or, ‘We, the members of the jury, find the defendant guilty,’ and if so, then go on and say, ‘And fix the degree of murder at murder of the first degree, murder in the third degree or voluntary manslaughter.’

I would further suggest that whoever is the foreperson, that he or she write the verdict down before entering the courtroom so that he or she can read it when asked and called upon to give your verdict.

If the Commonwealth has sustained its burden of proof as I have outlined it for you, do not for one moment be fearful to return a verdict of guilty in such degree as you determine the Commonwealth has demonstrated to you. If, on the other hand, the Commonwealth has not sustained its burden of proof, then it is your duty to render a verdict of not guilty and you should not be fearful of doing so.”

N.T. at 669-70, 672. Following these instructions, this colloquy ensued:

“[THE COURT:] Aside from the Points for Charge, are there any additional matters that counsel would have me refer to, clear up or add to at this point?

MR. FINK [(defense counsel)]: Yes, sir.

THE COURT: Come to side-bar.

(Discussion at side-bar, as follows:)

MR. FINK: I take exception to your failure to charge that sanity is an element of the offenses you mentioned.

THE COURT: So noted.

MR. FINK: I would take exception to Your Honor’s second failure to charge regarding the specific alternative possibility of a verdict of not guilty by reason of insanity in accordance with 19 Purdon’s 1351 which, I believe, *138 requires the instruction be given to the jury — the option be given to the jury, unless I misread it.

THE COURT: I do not follow you at all on that.

MR. FINK: It’s my feeling they should be specifically instructed there is an alternative not guilty verdict which specifically states not guilty by reason of insanity. I believe that’s what that statute says.

THE COURT: An exception is granted.”

N.T. at 672-73. 2

In denying appellant’s requested instruction that the jury be informed that there existed three alternative verdicts— (1) guilty, (2) not guilty, and (3) not guilty by reason of insanity — the court failed to follow the Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4413(a), which provides:

“Whenever any person charged with any crime is acquitted on the ground of insanity or having been insane at the time he committed the crime, the jury or the court as the case may be, shall state such reason for acquittal in its verdict.”

This provision essentially reenacted the Act of March 31, 1860, P.L. 427, § 66, as amended, 19 P.S. § 1351, which provided:

“In every case in which it shall be given in evidence upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the commission of such offence, and he shall be acquitted, *139 the jury shall be required to find specially whether such person was insane at the time of the commission of such offence, and to declare whether he was acquitted by them on the ground of such insanity; and if they shall so find and declare, the court before whom the trial is had shall order the cost of prosecution to be paid by the county, and shall have power to order him to be kept in strict custody, in such place and in such manner as to the said court shall seem fit, at the expense of the county in which the trial is had, so long as such person shall continue to be of unsound mind.” 3

The prejudicial effect on the truth-determining process of the court’s disregard of this legislative directive is manifest. As appellant has stated in addressing the trial court’s error, “[cjertainly if the jury was not informed of this permissible verdict, a full and informed decision could not be made. This is so because consideration would only be given to two of three permissible verdicts.” 4

This Court is obliged to address the trial court’s error in refusing to comply with the statutory mandate that has existed since 1860. That error requires the reversal of the order of the Superior Court and the grant of a new trial.

II

Not only is the extended discussion of the retrospective application of Commonwealth v. Mulgrew contained in the opinion announcing the judgment of the Court unresponsive to the prejudicial error established on the record and unnecessary to the proper resolution of the case, but it also propounds a theory of retrospectivity that has no sound basis *140 for application. Under the guise of proposing a “scheme most efficacious for this jurisdiction” for determining the retrospectivity of changes in “matters of purely state law,” the opinion propounds the very sort of “ambulatory retroactivity doctrine” that has recently been rejected by the Supreme Court of the United States for matters of federal constitutional law. See United States v. Johnson, 457 U.S. 537 , 102 S.Ct. 2579 , 73 L.Ed.2d 202 (1982). The opinion announcing the judgment of the Court suggests that this Court should “be guided by an examination of the history, purpose, and effect of the new rule, as well as the inequity and disruption that would be imposed by its retroactive application.” Yet the opinion’s limited analysis of the decision in Commonwealth v. Mulgrew demonstrates that the opinion has done little more than summarily conclude that appellant should be denied the right to the application of existing law simply because that law was established in a case other than appellant’s after appellant had unsuccessfully requested similar treatment at trial. 5

In rejecting an “ambulatory” approach to retrospectivity, which gives little guidance either to courts or to litigants, the Supreme Court of the United States has stated:

“The problem is not merely the appearance of inequity, but the actual inequity that results when the Court chooses which of many similarly situated defendants should be the chance beneficiary of a retroactively-applied rule. As the persistently-voiced dissatisfaction with the Court’s ‘ambulatory retroactivity doctrine’ has revealed, until now this Court has not ‘resolved’ this problem so much as it has chosen to tolerate it. The time for toleration has come to an end.”

United States v. Johnson, supra, 457 U.S. at 555 n. 16, 102 S.Ct. at 2591 n. 16 (1982) (emphasis in original) (citation *141 omitted). 6 In propounding the very theory of retrospectivity which has been demonstrated by case law to be inadequate, the opinion announcing the judgment of the Court has obviously ignored the recent admonition of Mr. Justice Nix, who, in a related context, wrote for the Court: “In such an instance it is fair to conclude that all of those litigants were in the same situation and the outcome of their lawsuit should not depend on a race to the courthouse.” Commonwealth v. Hernandez, 498 Pa. 405, 411 , 446 A.2d 1268, 1271 (1982).

On this record, none of the considerations deemed relevant by the opinion announcing the judgment of the Court to ensure “true fairness” supports its result. Even-handed justice of course requires that the same law be applied to appellant that has been applied on direct appeal to at least three other similarly situated defendants. 7 So, too, the application of existing law is required by “the purposes intended to be accomplished by the change [effectuated in Mulgrew].” Contrary to the assertion of the opinion announcing the judgment of the Court, the decision in Mulgrew was clearly more than “a refinement in our practice”; it was designed “to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so *142 raises serious questions about the accuracy of guilty verdicts in past trials.” Williams v. United States, 401 U.S. 646, 653 , 91 S.Ct. 1148, 1152 , 28 L.Ed.2d 388 (1971). In holding that a court must instruct the jury concerning the consequences of a verdict of not guilty by reason of insanity, this Court unanimously stated:

“[Ejxplaining the consequences of acquittal by reason of insanity to a jury will assist the jury in properly determining the guilt or innocence of a defendant. By such an instruction we reduce the possibility of compromise verdicts of guilty occasioned by a jury’s misapprehension of ‘acquitting’ a defendant by reason of insanity.”

Commonwealth v. Mulgrew, 475 Pa. 271, 276 , 380 A.2d 349, 352 (1977). Where, as here, a change in law has been designed “to overcome an aspect of the criminal trial that substantially impairs its truth-finding function,” the Supreme Court of the United States has consistently applied the new rule to all convictions, such as appellant’s, that are not yet final at the time of the change in law. “Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.” Williams v. United States, supra, 401 U.S. at 653 , 91 S.Ct. at 1152 (citing cases). See United States v. Johnson, supra (majority and dissenting opinions); Hankerson v. North Carolina, 432 U.S. 233 , 97 S.Ct. 2339 , 53 L.Ed.2d 306 (1977); Ivan V. v. City of New York, 407 U.S. 203 , 92 S.Ct. 1951 , 32 L.Ed.2d 659 (1972).

Nor can it be said that the retrospective application of Mulgrew to convictions not yet final will have an adverse “impact upon the system.” The number of cases in which the defense of insanity is raised is small; even smaller is the number of such cases which were pending on direct review at the time of this Court’s decision in Mulgrew . More important, the decision in Mulgrew governs conduct at trial which, unlike pre-trial conduct by law enforcement authorities, can be undone by remanding for a new trial. Although *143 the retrospective application of Mulgrew requires two trials instead of one, it in no respect unduly disturbs reliance on a pre-existing standard. 8

The ad hoc “balancing approach” suggested by the opinion announcing the judgment of the Court would serve only to invite uncertainty and, consequently, litigation concerning the retrospective application of decisions of this Court. As the Supreme Court of the United States recognized in United States v. Johnson , this approach does not advance, but only impedes, the fair administration of justice.

Only by a uniform application of existing law to all convictions not yet final can fairness to the defendant and society be achieved. As this Court stated in Commonwealth v. Brown,

“Certainly fairness demands that relief be granted not only in the first case which successfully contests a rule of law but also in all other cases pending on direct appeal which suffer from the same infirmity. To do otherwise in criminal proceedings is to impose an unwarranted hardship on defendants which affects their most fundamental rights of life and liberty, while serving no legitimate societal interest in applying an offensive law no longer valid. Cf. August v. Stasak, [ 492 Pa. 550 , 424 A.2d 1328 (1981)] (in civil case, hardship to litigant held to require application of law as it exists at time of appellate review).”

*144 494 Pa. at 385-86 , 431 A.2d at 908 . Like the appellants in the cases of Mulgrew, Brown, and Hastings, appellant is entitled to a new trial.

O’BRIEN, C.J., and FLAHERTY, J., join in this dissenting opinion.

. N.T. at 672-73 (Appellant’s exceptions to the charge).

. In addition to the exception noted at trial, appellant requested the following points for charge which were refused:

“2. If George Geschwendt, at the time he committed the acts, either did not know the nature and quality of his acts or did not know that they were wrong, you are instructed to return a verdict of not guilty by reason of insanity.”

“11. If you, members of the jury, possess a reasonable doubt as to the sanity of George Geschwendt at the time of the commission of the offenses presently on trial, you shall return a verdict of not guilty by reason of insanity. Upon the return of such a verdict, the court has the power to order him to be kept in strict custody, in such place and such manner as shall seem fit, so long as he shall continue to be of unsound mind.”

N.T. at 676, 679-80.

. The Act of 1860 was repealed by the Legislature in the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, § 2(a)[377], 42 P.S. § 20002(a)[377] (Supp.1982), and replaced by 42 Pa.C.S. § 1722(a)(1).

. Appellant’s Brief at 26. Remarkably, the opinion announcing the judgment of the Court has totally ignored appellant’s brief, which, as the above quotation illustrates, makes it clear that appellant has raised this argument on appeal, as he did at trial and in post-verdict motions.

. Appellant’s post-verdict motions were pending at the time of this Court’s decision in Mulgrew . These motions included a claim that the court had erred in denying appellant’s request for a jury instruction explaining the consequences of a verdict of not guilty by reason of insanity.

. The Supreme Court’s decision in United States v. Johnson to exercise its “power to eliminate the obvious unfairness that results when it gives only the most conveniently situated defendant the retrospective benefit of a newly-declared rule,” 457 U.S. at 556 n. 17, 102 S.Ct. at 2579 n. 17, comports with the common-law rule first articulated by the Supreme Court of the United States in 1801:

“[I]f, subsequent to the judgment and before the decision of the appellate court a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied .... In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.”

United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 , 2 L.Ed. 49 (1801).

. See Commonwealth v. Brown, 494 Pa. 380 , 431 A.2d 905 (1981); Commonwealth v. Mulgrew, 475 Pa. 271 , 380 A.2d 349 (1977); Commonwealth v. Hastings, 301 Pa.Super. 65 , 446 A.2d 1337 (1982), allocatur denied, October 8, 1982.

. Indeed, at the time of trial, the court was not compelled to deny appellant’s request for an appropriate instruction on the consequences of a verdict of not guilty by reason of insanity. Although Commonwealth v. Gable, 323 Pa. 449 , 187 A. 393 (1936), had held that a court’s refusal to give such an instruction was not reversible error, Gable did not preclude a court from giving such an instruction. Thus, contrary to the opinion announcing the judgment of the Court, it cannot fairly be said that the trial court had “no alternative but to follow [Gable].’’

It is, of course, evident that the opinion’s characterization of Commonwealth v. Mulgrew as “the clearest possible example of ‘a clear break with the past’ ” is at odds with the opinion’s characterization of Mulgrew as merely “a refinement in our practice.”