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decided: December 1, 1975.


Appeal from order of Court of Common Pleas of Lancaster County, No. 723 of 1972, in case of Commonwealth of Pennsylvania v. Robert Victor Boyer.


Penn B. Glazier, Assistant Public Defender, for appellant.

Mary Anne Motter, Assistant District Attorney, Ronald L. Buckwalter, First Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Concurring and Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this opinion.

Author: Jacobs

[ 237 Pa. Super. Page 343]

On January 9, 1973, appellant, Robert V. Boyer, was found guilty after a jury trial of prison breach. A sentence of 1-2 years of imprisonment was imposed but no direct appeal was taken. This appeal followed the lower court's dismissal of appellant's Post Conviction Hearing Act*fn1 Petition after a hearing was held. We affirm the order of the court below.

[ 237 Pa. Super. Page 344]

The first issue raised by appellant is whether the lower court erred in its charge to the jury on the defense of insanity. The lower court in its charge stated:

"The defendant has the burden of proving an insanity defense by a fair preponderance of the evidence." Notes of Trial Testimony at 36.

On July 1, 1974, the Pennsylvania Supreme Court decided Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974), which held that it was error for the trial court to place on the defendant the burden of proving the defense of intoxication to the charge of murder. Rose was subsequently applied to cases involving the defense of insanity shifting the burden of proof of that defense when placed in issue on the Commonwealth. Commonwealth v. Simms, 462 Pa. 26, 333 A.2d 477 (1975); Commonwealth v. Dixon, 235 Pa. Superior Ct. 415, 341 A.2d 147 (1975).

Because Rose was decided long after appellant's time for appeal had expired, and his conviction had become final, appellant asks us to apply Rose retroactively to his and thus all cases that had become final prior to the date of the Rose decision. We refuse to apply Rose to all such cases.

The Post Conviction Hearing Act may be utilized by a petitioner to obtain relief for a violation of "a right that was not recognized as existing at the time of the trial if the constitution requires retrospective application of that right." Act of Jan. 25, 1966, P.L. (1965) 1580, § 3(c)(12), 19 P.S. § 1180-3(c)(12) (Supp. 1975-76). Therefore, the issue we face is whether the constitution requires the application of Rose to cases involving the defense of insanity where the convictions were final (appeals had been exhausted or the time for appeal had expired) before the date of the decision in Rose.

In Commonwealth v. Williams, 232 Pa. Superior Ct. 339, 331 A.2d 875 (1974), Judge Spaeth speaking for this Court clarified the different situations involving

[ 237 Pa. Super. Page 345]

    retroactivity. "The first situation is when the appellate decision is not filed until after the conviction in question has become final, i.e., either no appeal from the conviction was taken and the time for appeal has expired, or an appeal was taken and on the appeal the conviction was affirmed. In this situation a true question of retroactivity is presented, and in deciding whether the appellate decision should be applied retroactively, the court will 'weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' Linkletter v. Walker, 381 U.S. 618, 629, 85 S. Ct. 1731, 1738, 14 L.Ed.2d 601, 608 (1965)." Id. at 343, 331 A.2d at 876.

"The second situation is where the appellate decision is filed after the conviction but before the conviction has become final, i.e., either the time for taking an appeal from the conviction has not expired, or an appeal has been taken but has not yet been decided. In this situation a true question of retroactivity is not presented, and in reviewing the conviction the court may apply the new rule announced by the appellate decision." Id. at 343-344, 331 A.2d at 877.

Judge Spaeth proceeded to discuss a third situation involving cases where appeals nunc pro tunc are allowed after the filing of a new appellate decision. However, that situation is not present in this case. It was also recognized in Williams that at times a rule set down in an appellate decision will not be applied to cases then pending on appeal because of the nature of the new rule. See Commonwealth v. Lockhart, 227 Pa. Superior Ct. 503, 322 A.2d 707 (1974) (applying Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973) which established the rule requiring a defendant to be informed on the record of the essential ingredients of a jury trial prior to waiving that right only to cases tried after the date of that decision and not to cases tried before the decision in Williams but still pending on appeal.)

[ 237 Pa. Super. Page 346]

A review of the law discloses that the Rose decision has been applied to cases tried prior to Rose but which were still pending on direct appeal after Rose was decided. In Commonwealth v. Simms, supra, the Pennsylvania Supreme Court reversed the conviction on the basis of Rose as did this Court in Commonwealth v. Dixon, supra. Although this Court spoke in Dixon of applying Rose "retroactively", a close examination of both Simms and Dixon discloses that both of those cases were before the Court on direct appeal and the convictions of the respective defendants had not become final. Thus, as expressed in Commonwealth v. Williams, supra, a "true question of retroactivity" was not presented by Simms or Dixon. Instead, Simms and Dixon fall within the second situation described in Williams where a new appellate decision is applied to cases where the conviction has not become final.

In determining whether Rose should be applied retroactively to cases where the convictions were final prior to the Rose decision we must weigh the "merits and demerits" of each alternative. The factors to be considered when deciding whether a decision should be applied retroactively have been set forth by the United States Supreme Court in Stovall v. Denno, 388 U.S. 293, 297 (1967):

"The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."

Looking first at the purpose to be served by the new rule of law, we observe that the Rose decision merely effected a change in the burden of proof when the defense of intoxication was presented by the defendant. The Supreme Court was careful to note that its decision was not based on constitutional grounds but was presented

[ 237 Pa. Super. Page 347]

    in "terms of state evidentiary law." Commonwealth v. Rose, supra at 386, 321 A.2d at 883. Although decisions of constitutional dimensions may be applied retroactively, Rose is not such a decision. See Roberts v. Russel, 392 U.S. 293 (1968).

Instead we have in Rose a change in the evidentiary law of this Commonwealth as we had in Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959), which removed from the defendant the burden of proof on the defense of alibi. Bonomo, however, was not applied retroactively but only to jury instructions given after the date of its decision. Commonwealth v. Scoleri, 399 Pa. 110, 160 A.2d 215, cert. denied, 364 U.S. 849 (1960). We must, therefore, conclude that the purpose of the Rose decision does not require its full retroactive application.

Turning next to the second criteria, the reliance by the authorities on the old standard, we must similarly conclude that Rose need not be applied retroactively. Although in the past there was some disagreement as to the burden of proof when the defense of insanity was placed in issue, see Commonwealth v. Vogel, 440 Pa. 1, 268 A.2d 89 (1970), lower courts generally felt safe in placing the burden on the defendant in the absence of some authority to the contrary. ...

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