*1 OPINION PER CURIAM. Appellant pay costs. affirmed.
Ordеr or J., participate in the consideration EAGEN, did of this case. decision
ROBERTS, J., POMEROY, dissent. Pennsylvania COMMONWEALTH MOYER, Appellant. Edward Carl Pennsylvania. Argued Jan. March
Decided *2 apрellant. Norristown, Pugh, for IV, William H. Nicholas, First Atty., Moss, T. Milton Dist. William O. Atty., Greenleaf, Asst. Dist. Atty., Asst. Dist. Stewart J. Atty., Barry Dist. Chief, Appeals Div., Asst. Miller, M. appellee. for EAGEN, O’BRIEN, ROB-
Before POMEROY, MANDERINO, ERTS, JJ. NIX and OF THE COURT
OPINION POMEROY, Justice. by in the jury of murder convicted year degree stabbing his nine
first for the death motions, post-verdict old brother. After the denial Moyer Hos was committed life the Farviеw State pital sentence, pursuant 410 of in lieu of to section 1966.1 Mental Act of Health and Mental Retardation appeal This direct followеd.2 morning The on the evidence at trial established that m., Moyer, May approximately 7:00 a. home, years away age living then nineteen from *3 Stowe, Montgom parents in broke into the home of his parents Pennsylvania.3 was ery County, his Neither of only person the was time; home house at that the sleeping Harry, Moyer’s year brother, nine old who was the upstairs Moyer kitchen an entered bedroom. large house, from a drawer the butcher knife removed a There proceeded upstairs bedroom. and to his brother’s repeatedly his in the stomach he stabbed brother IV, 20, 3, 96, 1966, § Special P.L. Act Sess. art. 1. of October No. 410, § 50 P.S. Act of 410(e) of 2. Section the Mental and Retardation Health provides: 1966 appeal facility, a an is committed to a defеndant “[w]hen manner and like effect as if sentence shall lie in the same with imposed, been penal institution had to a or correctional may by his taken defendant or counsel.” be manner as appeal be in the same Moyer’s Thus though is to treated imposed pur- imprisonment from of life it werе a sentence 31, July Appellate Jurisdiction Act. Act the suant to 223, 673, II, 211.202(1) 202(1), § § 17 P.S. No. art. P.L. (Supp.1975-76). jury burglary by that the same was convicted judgment Apparently no of sentence has guilty. found him conviction, burglary now imposed and therefore it not on appeal. subject 467 Appel- proved chest areas. A wound to the fatal. heart rooming lant fled to his Pottstown where he was house po- Upon questioning arrested a short time later. lice, Moyer that he had killеd his brother. admitted insanity. Moyer’s
At defense was one of trial produced psychiatric testimony at He the effect that disturbance, did killing, the time he of thе due to mental wrong. quality it know of his or that act testimony M’Naghten parts This met both thus Demmitt, insanity. 456 Pa. test for Commonwealth with In connection A.2d appellant insаnity the follow his defense the submitted ing point charge: “The the bur Commonwealth has proving sanity beyond reason den a defendant’s req charge as ablе doubt.” The trial court refused jury the de uested,4 5and instead instructed insanity by pre proving fendant bore the burden of ponderance the law the evidenсe. this was While time,5 longer. it is no so Commonwealth (1975); 463 Pa.
Cropper, (1975); 463 Pa. Common A.2d (1975); Com Simms, wealth Pa. A.2d 477 Vogel, (1974); monwealth v. A.2d 458 Pa. (1974); Demmitt, supra. Commonwealth v. Demmitt, clеar
In we it made where, here, suffi as there is case evidence insanity, cient to is then raise the the burden issue *4 upon the san the to establish defendаnt’s ity beyond because, we doubt. as a reasonable This so Rose, supra, any crimi in stated “[i]n unshifting prosecution, has an nal the Commonwealth speсially counsel 4. While the record is unclear whether defense point charge, excepted is of refusal of to the court’s the Williams, 463 373 n. Pa. no mоment. See Commonwealth 879 n. January January 5. Trial was 22 and held between prove beyond burden to all elements doubt reasonable of . . has no crimе. . defendant burden [T]he persuasion.” The A.2d at 884. Pa. at charge requested appellant thus refusal as prejudicial granting mandates of a new errоr and trial. argues in
The our decisions Rose, retrospec supra, given Demmitt should not be expressions they tive effect eviden because werе state tiary upon principles. law and founded constitutional A.2d at See Commonwealth at Pa. is, how 883. The effect those decisions this, ever, longer open question no in cases such as properly preserved trial. where the issue has See Commonwealth v. and Commonwealth Williams light Simms, supra. Furthermore, decision Mullaney v. United States S,Ct. Wilbur, 1881, 44 L.Ed.2d 421 U.S. cases (1975), likely those it seems that our decisions constitutionally required by Due Clause Process were Amendment. Fоurteenth Judgment trial and a new sentence reversed ordered.6
EAGEN, J., in the result. concurs opinion dissenting in which NIX, J., filed a J., joins. (dissenting).
NIX, Justice respectfully
I must dissent. Pa. Relying on Commonwealth Simms, 462 (1975), and Commonwealth mistakenly as- majority (1975), A.2d 477 which, of our because other issues has raised several case, disposition need not consider. of this we *5 469 longer open regard- question” sumes that there “no ing application principle announced 475, Demmitt, in Commonwealth v. 456 Pa. 821 627 proof (1974), appropriate as to the burden of where unpersuaded sanity issue of I has been am raised. requires Williams, supra, supra, either such a Simms, or in conclusion. Whilе the rule announced supra, Demmit, Williams, supra, applied v. supra, retroactivity Simms, affirma- was not issue specifi- tively challenged, thus, this has never Court сally application addressed the issue of the retroactive in- proof where cases Commonwealth’s burden sanity is claimed.1 not the resоlving question or
Without
of whether
Wilbur,
684,
Mullaney
95 S.Ct.
decision of
421 U.S.
1881,
constitutionally
(1975)
44
mandates
L.Ed.2d 508
supra.2
I
the result reached in
only point
need
out that even the
Statеs
United
prior,
Court
inflexible view
has retreated from its
retroactivity
interpretations
given
full
must be
new
47,
Michigan
93
Payne,
412 U.S.
Constitution.
See
Moreover,
1966,
(1973).
36
S.Ct.
L.Ed.2d 736
simple
longer
inquiry
distinc
Court no
confines its
to the
appeal. Compare, Wil
tion between direct and collateral
1148,
646,
28 L.
States,
liams v.
401
S.Ct.
United
U.S.
91
244,
States,
(1971);
394 U.S.
Ed.2d 388
Desist v. United
1080,
(1969);
v. New
Jоhnson
89 S.Ct.
L.Ed.2d
Jersey,
1772,
L.Ed.2d 882
384 U.S.
86 S.Ct.
(1966);
Shott,
S.Ct.
with Tehan v.
382 U.S.
Walker,
U.S.
(1966);
It is clear to me that even constitutionally Wilbur, supra mandated standard is a the exi- procedure, thorough consideration of criminal appli- ruling gencies require does not this cation. joins in this dissent.