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decided: December 1, 1977.



Sanford A. Krevsky, Public Defender, Thomas C. Zerbe, Harrisburg, for appellant.

Marion E. MacIntyre, 2nd Asst. Dist. Atty., Harrisburg, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., files an Opinion in Support of Affirmance in which Eagen, C. J., joins. Nix, J., concurs in the result of this Opinion. Roberts, J., files an Opinion in Support of Reversal in which O'Brien, J., and Manderino, J., join. Jones, former C. J., did not participate in the decision of this case.

Author: Per Curiam

[ 476 Pa. Page 103]


The judgment of sentence is affirmed by an equally divided Court.


POMEROY, Justice.

Appellant Kenneth Ernst was convicted by a jury of murder in the first degree for the shooting death of his 20 year old son. Following the denial of post-trial motions, he

[ 476 Pa. Page 104]

    was sentenced to a term of life imprisonment. In this direct appeal*fn1 Ernst raises several issues, none of which I find meritorious; I would therefore affirm the judgment. Of the several issues tendered in support of a new trial, I deal with only one in this opinion.*fn2

At his trial, appellant presented an insanity defense consisting of the testimony of both lay and psychiatric witnesses that, due to a mental disease, Ernst could not determine that his act was wrong. On that issue, the trial judge charged the jury as follows: "The defendant has the burden of proving an insanity defense by a fair preponderance of the evidence". It is now argued that this charge was in error in light of our decisions in Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974), and Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974), both of which were announced after trial of this case.*fn3

The Commonwealth does not dispute the assertion that the charge of the court was erroneous in light of Demmitt, supra. In that case we held that where, as here, there is evidence in the case sufficient to raise the insanity issue, the prosecution then bears the burden of proving a defendant's

[ 476 Pa. Page 105]

    sanity beyond a reasonable doubt.*fn4 See also Commonwealth v. Delker, 467 Pa. 305, 356 A.2d 762 (1976); Commonwealth v. Moyer, 466 Pa. 464, 353 A.2d 447 (1976). Instead, it is argued by the Commonwealth (1) that the Demmitt decision, having been announced subsequent to the instant trial, should not be applied to this case, and (2) that appellant's failure to object to the charge precludes him from assigning it as error on appeal. I agree with these positions.

Our decisions in Demmitt and Rose, supra, were founded upon state evidentiary law. See Commonwealth v. Rose, 457 Pa. at 386, 321 A.2d at 883. While acknowledging in our opinion in Rose that the decision of the Supreme Court of the United States in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), had held that due process requires that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged, we expressed uncertainty as to whether the Winship holding was applicable to affirmative defenses, for in an older Supreme Court case, Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), it had been held that due process was not violated by a state's placing the burden of proving the defense of insanity upon the defendant.*fn5 Subsequent to Demmitt and Rose, however, the Supreme Court decided Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), a decision which extended Winship to invalidate the rule prevailing in the state of Maine which required a defendant charged with murder, if he would reduce the crime to voluntary manslaughter, to prove by a preponderance of the evidence that he acted in the heat of passion on sudden provocation. On the basis of our reading of Mullaney we thereafter expressed the thought that our Demmitt

[ 476 Pa. Page 106]

    and Rose decisions may have possessed a constitutional underpinning. See, e. g., Commonwealth v. Moyer, 466 Pa. 464, 353 A.2d 447 (1976); Commonwealth v. Haywood, 464 Pa. 226, 346 A.2d 298 (1975); Commonwealth v. Williams, 463 Pa. 370, 344 A.2d 877 (1975). Cf. Commonwealth v. Cropper, 463 Pa. 529, 535, n.6, 345 A.2d 645 (1975). And as a consequence of the view that the Demmitt holding was probably required by the federal constitution, we applied that decision retroactively to cases reaching us on direct appeal which, like the one before us instantly, had been tried prior to the announcement of the Rose and Demmitt decisions.*fn6 See Commonwealth v. Moyer, supra; Commonwealth v. Williams, supra; Commonwealth v. Simms, 462 Pa. 26, 333 A.2d 477 (1975). The Superior Court did likewise. Commonwealth v. Dixon, 235 Pa. Super. 415, 341 A.2d 147 (1975).

With this background in mind, I am now obliged to observe that our original hesitation over grounding the adjudications in the Rose and Demmitt cases on constitutional requirements has proved to be justified. In its most recent pronouncement on the Winship doctrine, the Supreme Court held that "it remain[s] constitutional to burden the defendant with proving his insanity defense," and took occasion to confirm the continuing vitality of its decision in Leland v. Oregon, discussed supra. Patterson v. New York, 432 U.S. 197, 204, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281, 289 (1977).*fn7 See also Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976). In consequence of Patterson, we should now adhere to our initial characterization of Rose and Demmitt as decisions based on state evidentiary law.

[ 476 Pa. Page 107]

The almost uniform practice of this Court has been to apply nonconstitutionally premised criminal law decisions in a non-retroactive manner. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). Accord, Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 (1976) (opinion announcing decision of the Court); Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974) (opinion in support of affirmance); Commonwealth v. Fowler, 451 Pa. 505, 304 A.2d 124 (1973); Commonwealth v. O'Neal, 441 Pa. 17, 271 A.2d 497 (1970); Commonwealth v. Scoleri, 399 Pa. 110, 160 A.2d 215 (1960) (opinion in support of affirmance). See also Commonwealth v. Jackson, 230 Pa. Super. 386, 326 A.2d 623 (1974); Commonwealth v. Williams, 232 Pa. Super. 339, 331 A.2d 875 (1974). But see Commonwealth v. Saunders, 456 Pa. 406, 322 A.2d 102 (1974). Inasmuch, however, as several defendants whose trials took place prior to the announcement of our Demmitt and Rose decisions have heretofore received the benefit of the decisions in direct appeals from judgments of sentence, see Moyer and related cases cited supra, I believe that it would be inequitable to reverse course at this juncture and deny to other defendants similarly situated (i. e., those whose judgments are not yet final) the same relief. Thus I believe that good reason exists for according our Demmitt and Rose decisions a limited measure of retroactivity.

Unfortunately for the present appellant, however, he is not in fact "similarly situated" to the appellants in Moyer and the other decisions cited above. In those cases the defendants had preserved the issue for appellate review by raising it at trial.*fn8 Kenneth Ernst, on the other hand, did not raise any objection to the court's "preponderance charge" at any time in the trial court; the first mention of the problem is in this appeal. Our rules of criminal procedure, reflecting sound jurisprudential considerations, provide that an appellant may not assign as error a portion of a

[ 476 Pa. Page 108]

    charge to a jury or an omission therefrom unless specific objection is made before the jury retires to deliberate.*fn9 Pa.R.Crim.P. 1119(b). See, e. g., Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). This is reflective of the elementary principle that an appellate court does not review issues raised for the first time on appeal. See, e. g., Commonwealth v. Daniels, 467 Pa. 35, 354 A.2d 538 (1976); Commonwealth v. Blount, 466 Pa. 370, 353 A.2d 400 (1976); Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). In recent years this proposition has been fortified and emphasized by the elimination of the exception for "basic and fundamental error." Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

It is true that the reasons supporting a limitation of appellate review to points which have been properly preserved below are absent when the unasserted proposition is not in being at the time of trial. See Commonwealth v. Cheeks, 429 Pa. 89, 239 A.2d 793 (1968). See also Commonwealth v. Richardson, 433 Pa. 195, 249 A.2d 307 (1969); Commonwealth v. Simon, 446 Pa. 215, 285 A.2d 861 (1971). Cf. Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966). Cheeks, however, was a case involving a constitutional claim, where different considerations are necessarily involved. Although in such a case a defendant will not be precluded from raising on appeal a legal principle newly announced in an appellate decision rendered subsequent to the date of trial, I do not believe that this exception should be extended to non-constitutional claims. A similar situation was before us in Commonwealth v. Cropper, supra, a pre- Rose/Demmitt case in which defendant's counsel admitted during ...

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