Com. v. Mulgrew
Decision Date | 01 December 1977 |
Citation | 380 A.2d 349,475 Pa. 271 |
Parties | COMMONWEALTH of Pennsylvania v. Warren Paul MULGREW, Appellant (two cases). |
Court | Pennsylvania Supreme Court |
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Robert A. Zunich, Pittsburgh, for appellee.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, and MANDERINO, JJ.
On January 12, 1976, appellant, Warren Paul Mulgrew, was tried by a judge sitting with a jury and found guilty of murder of the third degree, carrying a firearm without a license, and use of a firearm in a crime of violence. The above conviction arose from the homicide of Harry Fowler on July 2, 1975. On April 1, 1976, appellant's post-verdict motions were denied. Appellant then filed a motion to reconsider the post-verdict motions, which was denied on May 25, 1976. Appellant was sentenced to a term of imprisonment of not less than ten nor more than twenty years for the conviction of murder of the third degree, and a consecutive two-and-one-half-to-five year sentence for the firearms convictions. Appellant appealed the judgment of sentence of murder of the third degree to this court and appealed the judgments of sentence in the firearms violations to the Superior Court. The Superior Court, on August 9, 1976, certified to this court the appeal for the firearms convictions.
Appellant argues that the court below erred in failing to charge the jury on the consequences of a verdict of not guilty by reason of insanity. We agree.
Appellant requested the following instruction:
The above point for charge did not correctly state the applicable law at the time of the trial concerning the confinement to mental hospitals of persons acquitted of crimes by reason of insanity.
Appellant relied on the Act of March 31, 1860, P.L. 427 Sect. 66, as amended by the Act of April 17, 1929, P.L 532, § 2, which read:
"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, 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."
This court, in Commonwealth ex rel. DiEmilio v. Shovlin, 449 Pa. 177, 295 A.2d 320 (1972), determined that the "Mental Health and Mental Retardation Act of 1966", Special Sess. No. 3, October 20, P.L. 96, art. IV, § 413, 50 P.S. § 4413, "repealed and replaced" the Act of 1860. The applicable law at the time of the instant trial 1 was "(a) 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.
"(b) In such event, the court may direct the Attorney for the Commonwealth to act as petitioner to initiate commitment proceedings under section 406."
We believe that the requested point for charge, although erroneous, "(sufficiently) alert(ed) the trial judge to an important issue in the case". Commonwealth v. Sisak, 436 Pa. 262, 270, n. 5, 259 A.2d 428, 432, n. 5 (1969). Therefore, merits of the issue are properly before this court for appellate review.
Appellant argues that the court below erred in failing to instruct the jury concerning the consequences of a verdict of not guilty by reason of insanity. We agree and reverse the judgments of sentence and remand the case for a new trial.
The trial court, relying on Commonwealth v. Gable, 323 Pa. 449, 187 A. 393 (1936), rejected appellant's requested charge. In Commonwealth v. Gable, supra, this court summarily rejected a similar point for charge by saying:
Today, we overrule Commonwealth v. Gable, supra, and hold that it is proper to instruct the jury concerning the possibility of commitment proceedings being initiated against the defendant if such defendant is acquitted of the criminal charge filed against him by reason of an insanity defense.
We adopt the reasoning of the Circuit Court of Appeals for the District of Columbia in Lyles v. United States, 103 U.S.App.D.C. 22, 25, 254 F.2d 725, 728 (1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958), cert. denied, 362 U.S. 943, 80 S.Ct. 809, 4 L.Ed.2d 771 (1960), cert. denied, 368 U.S. 992, 82 S.Ct. 610, 7 L.Ed.2d 529 (1962). The Circuit Court of Appeals, in Lyles, stated:
(Emphasis added.)
We agree with the reasoning of Lyles, supra, that explaining 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. The instruction will inform the jury that a defendant acquitted by reason of insanity may be the subject of a commitment proceeding which commitment would continue until it is established that the defendant is mentally able to return to society and not be dangerous to himself and other persons.
In Commonwealth v. Mutina, 366 Mass. 810, 323 N.E.2d 294, 301-02 (1975), in discussing the benefit of including an instruction concerning the consequences of an insanity acquittal, the court stated:
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