Commonwealth v. Brown ( 1981 )

LARSEN, Justice,

dissenting.

I dissent. In Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), this Court held that a jury should be instructed on the possible dispositions of a criminal defendant found not guilty by reason of insanity. The majority now erroneously gives that holding retroactive application to this case where the jury was instructed and the verdict rendered prior to the Mulgrew decision. The rationale for the decision in Commonwealth v. Mulgrew was that since the jury already knew by common knowledge the consequences of verdicts of guilty and not guilty, it would also be appropriate to inform them of the consequences of a verdict of not guilty by reason of insanity. The new rule of criminal procedure announced in Mulgrew did not, therefore, rest upon a constitutional mandate, and thus should be given wholly prospective application. See Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973); Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974); and Commonwealth v. Geschwendt, 271 Pa.Super. 102, 412 A.2d 595 (1979).

The majority, however, seeks to avoid this rule of prospectivity by analogy to a completely unrelated civil case, August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981), which involved insurance coverage, and by wholly ignoring the effect their ruling has on the Commonwealth, its witnesses, the taxpayers, and society. The appellant in this case has already been twice tried for and found guilty of the 1973 stabbing death of a Pittsburgh woman in her downtown office. There was nothing inherently unfair or prejudicial about the second trial, and now eight years have elapsed since the incident. The witnesses have no doubt forgotten much of what occurred, some witnesses may no longer be available, and the Commonwealth will certainly be prejudiced in presenting its case again at this late date. Further, the taxpayers will be paying the bill for this prosecution for the third time, and the parents of the victim will be forced to again experience the emotionally debilitating task of reliving the events surrounding the senseless and brutal murder of their daughter (the victim was stabbed approximately 72 times, as well as strangled). And, what is received in exchange for these sacrifices — the repetition of a fair trial which could perhaps be moved closer to perfection. Such bargains reflect a myopic view of the needs of the administration of justice and the integrity of the judicial process and, additionally, are barren of any consideration of societal interests and a true sense of justice.

The judgment of sentence should be affirmed.

KAUFFMAN, J., joins in this dissenting opinion.