*2 BROSKY, Before POPOVICH, CIRILLO and JJ.
POPOVICH, Judge:
This is а direct from a of appeal of judgment sentence (5) less than five years nor more than (10) ten years, imposed the trial court by after a found appellant, the D. Robert McCann, of guilty aggravated (18 assault 2702). Pa.C.S.A. §
On appeal, appellant that, alia, contends inter trial counsel was ineffective for failing the court to instruct the the jury concerning consеquences of a verdict returning of not by of We insanity.1 agree and, accord ingly, vacate of judgment sentence and for a remand new trial.
As this Court has stated in the past, in deciding claim of ineffectiveness, we must wheth initially determine er the issue of underlying charge ineffectiveness is of arguable merit. Jennings, Commonwealth v. Pa.Super. 295, 427 231 (1981). Then, A.2d if the issue is underlying held to of arguable merit, we determine whether the light ruling, 1. our allegations we need not consider other by appellant. error raised basis designed counsel had some reasonable
course taken by best interests. Id. his client’s promoting arguable if assertion appellant’s In ascertaining Decem- merit, examining starts the facts. On the Court was home when 11, 1979, Wilma Cooper walking ber Mrs. in broad victim daylight. Mirаculously, she accosted stab all parts infliction of some 20 wounds to survived the incident, picked appellant her after Shortly body. knife police complaining the scene up near was sustained in the which claimed leg, wound to his prove a woman attacked. To being course of aiding where Mrs. Cooper took the authorities to point, appellant immediately sum- police in a of blood. The was lying pool transported the victim and then moned an ambulance for there, officer in While hospital. *3 a note from one investigation the was handed charge of description note a attendants. The gave the ambulance which was assailant, victim, writer the the as told to the the result, police to the As аppellant. similar strikingly and, rights shortly him of his located the advised appellant, Additionally, thereafter, confession. taped secured an out of array photograph victim selected the appellant’s in the hospital. was recuperating shown to her while she raised the defense trial, Prior to counsel appellant’s directed that the trial court Accordingly, observa- Hospital Warren State referred to appellant indicated that the to the court tion. Test results submitted to stand trial. was competent appellant Court, this in his brief to counsel appellate As conceded by Appellant was whether the in the case real issue only “[t]he consequence As a stabbing.” was sane at the time of both prоffered by. testimony heard thereof, pen- concerning appellant’s defense and the Commonwealth fact, the sanity perversion. and chant for violence sexual direct testi- through the defense issue was broached neighbor. next door Barker, appellant’s a Mary mony Barker how Mrs. recounted she had observed appellant in sexual engaging aсtivity with a dog—once appellant’s Next, home and a of times in the Dr. couple yard. Betty Benken, Von a clinical forensic psychologist unit at Warren State testified to Hospital, administering battery intellectual, of tests to the which measured neuro- logical and factors. personality The witness was able to times, conclude from the tests appellant, suffered from so that it anxiety high incapacitated him. The witness went on to report appellant exhibited “obsessive think- ing about and rape stabbing; though and even he knew it seem wrong, (N.T. was couldn’t to control it.” 203) Also, the witness admitted that did not fantasy just it (N.T. occur “but was occasionally, every day[.]” 204) However, Benken, Dr. Von the number of tests despite administered, way what was in knowing [appеl- “ha[d] at the exact moment that he stabbed the lant’s] mind[]” victim. (N.T. 217) Finken,
Dr. Walter Director of Forensic S. Unit of Warren also testified on Hospital, State behalf de- fense. Dr. Finken recounted how the appellant, during their interview, initial assault admitted planning (“rape”) that, of Mrs. after and out of Cooper; appellant dropped with college moved in his grandmother, in- “[h]e . . . creasingly plagued rape fantasies of and murder.” (N.T. 236) Such acted out when the predilection finally appellant assaulted Mrs. As the witness Cooper. opined:
“at the time of actual I he the think thing, [appellant] flipped into some of a brief state sort over- psychotic emotion, whelmed I that by intense and think these horri- fantasies, destructive bly murder fantasies hе rape rape reason, had been for some instead of having, suddenly action, and, uh, over into ending flight, flipped during time, this actual suspended. I think that he was I don’t in; think he knew the he was except frenzy and anything such, time, uh, as actual I postulate that will that I during think that and his of was understanding right wrong he knew a and I don’t think there such
suspended, 242-43) thing wrong.” (N.T. as and right cross-examination, did not waver from his On the witnеss was aware of his conduct that, appellant position although incident, during the actual he stabbing before and after the from other right wrong. was unable to differentiate loss of contact with and was words, reality had a appellant 257) (N.T. anything. not aware of defense, the Commonwealth insanity To rebut appellant’s own Dr. psychiatrist, Phillip' to its was permitted present to reviewing The testified all rele- J. Resnick. witness on the and appellant interviewing vant prepared literature for three hours to his prior preparing the accused about report, content of the reciting In the course report. having “very as close appellant the witness described pleas- mind between sexual association his psychological to the victim.” punishment ure and the administration Dr. Dr. Resnick with Von Additionally, agreed (N.T. 272) sadist; as a sexual how- Bender’s diagnosis appellant “something he that such disorder was ever, did not agree out of touch with reality.” which causes someone the witness that believed (N.T. Quite contrary, 275) knew the reality, “was in touch appellant Further, the Doctor (N.T. 277) action.” his if that Mr. you hypothеsize this even “in case opined, I mental illness—which don’t agree have a McCann did act, it is still belief that his my time with—at the from knowing not him preclude mental did disease it Nonetheless, was 278) (N.T. of the act.” wrongfulness to minimize fact not Dr. Resnick’s intention sadism) disorder suffered (sexual “ma[de] of thing “and this kind society,” dangerous him extremely treatment, so by psychiatric not cured easily [he] [was] dangеrous person being highly [appellant] fores[aw] At the conclusion (N.T. 281) future.” the indefinite that there were charged witness’ testimony, case, or i.e., not guilty, verdicts possible three of insanity.
447 motions, In counsel post-trial assigned various reasons However, for relief. the averment we only need concern ourselves is with whether court erred in not charging the on the treatmеnt possible psychiatric and commitment if a verdict of accused not of insanity were returned. Since court noted that counsel’s stew in made, was intertwined the claim ardship there having objection counsel specific lodged by at the time the (Pa.R.Crim.P. was read it charge 1119(b)), counsel permitted to withdraw appointed (private) and new counsel for the purрoses filing additional arguing grounds in support of a Motion for a New Trial and/or Arrest of Judgment.2 In the counsel, motion filed new supplemental by he asserted that trial counsel ineffective for to failing request the trial court to instruct the jury concerning of a verdict of guilty by reason and for trial insanity, counsel’s to take specific objection failure at the same cоnclusion of charge.
Prior to the effectiveness of assessing counsel, trial the threshold is whether there is question arguable merit to appellant’s contention entitled have his counsel an instruction on the ramifications verdict of not returning by reason of DiVentura, Commonwealth v. 471, 270 411 A.2d Pa.Super. 815 (1979). perusal A of the case law indicates that such question is answered our Suрreme Court’s ruling 271, Commonwealth 380 Mulgrew, A.2d 349 (1977). Mulgrew, jury returned a verdict of murder third degree, carrying firearm without a license and use of that, agree judge given made, 2. We trial the claim prudent by appointing course action was taken counsel other than public represent post- from defender’s office to proceedings, employed inasmuch as trial counsel was sаid Cooke, 5, Pa.Super. 205, office. See Commonwealth v. 288 208 n. 360, (1981); Jennings, 431 A.2d n. 362 5 see also Commonwealth v. 295, 231, Pa.Super. (1981). 285 298 n. 427 232 n. 2 A.2d Accord- ingly, preserved of trial issue counsel’s ineffectiveness Terrell, Pa.Super. review. Commonwealth v. 276 A.2d 133 *6 violence. trial counsel appeal, a firearm in a crime of On in failing charge, lower court erred argued that the trial, at that be made awarе of the requested jury had not of a verdict of guilty by insanity. of consequences of and sentence for a judgment remanding reversing trial, Court embraced the of the thinking new Mulgrew for the District in Appeals Court of of Columbia Circuit 25, 22, 103 254 F.2d U.S.App.D.C. States, v. United Lyles 961, 997, 356 78 2 denied, 725, (1957), U.S. S.Ct. cert. 809,4 943, 362 U.S. 80 S.Ct. denied, (1958), L.Ed.2d 1067 cert. The following passage quoted L.Ed.2d 771 the Circuit Court of decision in Appeals’ from approval Lyles: dоctrine, well and
“This
arises under
established
point
sound,
has no concern with the
jury
that the
sentence,
any,
in the
if
or the nature or
verdict,
of a
either
we
it,
probation.
extent of
or in
But
think
doctrine
The
not
in the
before us.
issue of
problem
does
apply
raised, the
may
return
having
fairly
jury
insanity
verdicts,
of
not
or not
guilty,
guilty,
one
three
Jurors,
in
in common with
people
reason of
of
of verdicts
meanings
guilty
are aware
general,
It
that a
of
knowledge
and not
is common
verdict
guilty.
that the
free
that a
prisoner goes
not
means
guilty
that he is
to such
subject
punish-
verdict
means
of guilty
impose.
ment as the court may
But a verdict of
guilty
commonly
has
such
understood
insanity
by
of fact its
was not made
meaning
As matter
meaning.
until
enacted
statute
jurisdiction
Congress
clear
this
means
nor
punish-
1955. It
neither freedom
August
of
in a
will be confined
hospital
ment.
It means the accused
such
ill until the
of
mentally
superintendent
hospi-
satisfied,
such
and the court
certifies,
person
tal
and will not in the
his
reasonable
sanity
has recovered
We
to himself or others.
think
dangerous
future be
meaning
possible
has
to know the
of
right
jury
knowledge
as it knows
common
by
verdict as-accurately
verdicts.” (Empha-
the other two possible
meaning
v. Mulgrew, supra,
sis in
Commonwealth
original)
Finally, having merit, we must now decide if there was some arguable to have such requested reasonable basis for trial counsel not Washington Maroney, ex rel. instruction. Commonwealth court, 599, 604, 349, 352 The lower 235 A.2d at which conducting post-trial proceedings after “[testimo- decision not was found as a fact that counsel’s taken[,]” ny tactical one. finding to the instruction was a Such was predicated upon following: that if requested
“(8) ... [trial counsel] reason[ed] be that defendant had granted, would point probably that from Warren Hоspital, been released State already of Warren of State psychiatrist testimony that dangerous person, was a very the defendant Hospital, of the of a consequences not be informed should due to insanity verdict of not guilty by a released after legally such a to be person of ability addition, In trial from treatment. short term relatively would re- Attorney cоunsel was concerned the District that defendant charge an additional and receive quest be released in a year. could that the The defendant’s counsel . . . Court
(9)
belie[ved]
for
defendant in a mental institution
could not commit the
without review.
(1)
one
year
a
to exceed
period
further believed
it was not
Defendant’s counsel
(10)
a
that a
to the
charge
mandatory
to
be submitted to a
insanity
verdict of not
due
(Lower
Opinion
6)
case.”
Court
under the facts
trial court that the reasons just
We
with the
agree
cannot
some reasonable basis for counsel’s
cited are indicative of
cast
in a
counsel
role at odds
(in)action.
they
If anything,
in his client’s best interest.
acting
with that of an advocate
For
it is conceded thаt the
supra,
Point #
example,
have
if
given
yet
would
charge
question
sought,
was
ability
basis for not
same
“the
requesting
counsel’s
. .
released after
short
relatively
.
[appellant]
legally
statement, aside from being
term from treatment.” Such
nature,
is not substantiated
evidence
any
conclusionary
fact,
fact that
disputed
at trial
one
record.
would remain that
society
danger
Thus,
discussion
under the
supra.
for a
time.
way
long
See
Act (50
Health Procedures
Pa.C.S.A.
strictures of Mental
1981-82)),
involuntary
7101 et
court-ordered
seq. (Supp.
§
if he
were
acquitted by
treatment
appellant,
him to confine-
(50
7406),
expose
Pa.C.S.A.
would
insanity
§
original
aggravated
ment
to the term of his
sentence
up
determined after
assault, or
if the
court
longer,
disabled
severely mеntally
review
he still
yearly
(50
7304(g)(4)).
and in need of treatment
Pa.C.S.A. §
*8
of the
10,
lengthy
As
Point #
our review
supra,
for
was not to
strategy
us that counsel’s trial
record convinces
but,
Mrs.
had stabbed
Cooper,
contest the fact that appellant
legally
basis that
instead,
to defend on the
assault. We find no fault with
insane
the time of the
evi-
overwhelming
in
of the
especially
light
trial strategy,
However,
corollary
a necessary
dence against
appellant.
given
is
that an instruction be
to such
strategy
a
verdict of
jury returning
on
of the
consequences
White,
v.
reason of
Cf. Commonwealth
guilty
an
(in a murder
179,
(1980)
prosecution,
490
415
399
Pa.
A.2d
when
charge
given only
shall
involuntary manslaughter
451
in
offense has been made an issue
and where the
requested,
reasonably
support
the сase and the trial evidence
would
Williams,
v.
490 Pa.
such a
accord Commonwealth
verdict);
187, 415
conclusion is
inescapable,
A.2d 403
Such
“that when
Mulgrew
insanity
given
“hold[ing]”
charges,
raised as a
defense to criminal
a
must
possible
jury
psychiatric
be instructed
treatment
concerning
possible
defendant after
the return
a
and commitment of the
of insanity.”
(Footnote
verdict of nоt
guilty by
added)
v.
omitted)
Mulgrew,
Commonwealth
(Emphasis
277,
Furthermore, of our decision support quote Mutina, 810, 822, Mass. language Commonwealth that: (1975) 323 N.E.2d 301-02 classic example “The instant case represents information is with- which occur when such injustice may doubt held from The could have had no jury. The also that the defendant crime]. [committed evidence that the de- heard overwhelmingly persuasive that, killing at the time of the fendant was insane *9 452 future, he remain a to time into the will menace long their to Foremost minds must society.
himself and have for the safety community. concern from the judge the absence of an instruction to of not guilty the effect a verdict justice render both to jurors sought insanity, [by returning verdict], defendant and to society (Quoted but a true verdict. ...” theirs v. 475 Pa. at Mulgrew, supra, in Commonwealth approval 277, at 352) 380 A.2d of the faсts descriptive present
We the aforesaid to find Therefore, in in the bar. the absence reasona any case at ble failure instruction request basis for counsel’s 329, see, v. Pa. here, e.g., Bailey, issue Commonwealth 480 Sullivan, 166, Commonwealth v. 336, (1978); 390 A.2d 170 468, 484 v. 129, 164, (1977); Pa. 371 A.2d Commonwealth 472 444, 729, Smith, 441, (1979); 417 A.2d 731 Pa.Super. 273 521, A.2d Ulatoski, 524, v. 267 407 Pa.Super. Commonwealth to the 32, 34 we conclude that entitled (1979), Mulgrew, relief v. Con supra. Commonwealth requested. remand we vacate the of sentence and judgment sequently, for a new trial.
CIRILLO, J.,
dissenting
files a
opinion.
CIRILLO, Judge, dissenting:
It is well settled that the particular
I
dissent.
respectfully
have
counsel must
some reasona
course of action chosen
to effectuate his client’s interests. Com
ble basis designed
599,
v.
235
Maroney,
rel. Washington
monwealth ex
Pa.
Roman,
v.
494
A.2d
see also: Commonwealth
(1967);
349
Anderson,
v.
490
440,
Commonwealth
(1981);
431 A.2d
Pa.
Trial
Pa.
Mulgrew,
case
Commonwealth
Supreme Court
instruc-
chose not to
an
(1977),
The test
the course chosen
whether
by counsel
reasonable, not whether other alternatives were more rea
sonable
evaluation
the record.
upon hindsight
Common
wealth v.
There was unfair nothing or about inherently prejudicial trial, the trial. A new to correct what turned out to be a counsel, tactical error paid defense must be by Commonwealth, of this will burden an taxpayers already calendar, crowded judicial and will further the admin- delay istration justice in this cаse. The best interest particular and of the law parties, society, have already served previously conducted. of sentence should
Accordingly, judgment be affirmed. “Pennsylvania Suggested 1. Had the court below followed the Stan- dards, Jury 5.01(a),” Criminal Instructions would have been told, alia, inter insanity, a defendant is found not as the result of [W]hen may subject proceeding of an immediate court to commit facility him treatment and if to mental his commit- committed longer dangerous until ment will continue he is to others or to [Emphasis himself. added.]