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COMMONWEALTH PENNSYLVANIA v. GEORGE GESCHWENDT (10/19/79)

filed: October 19, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE GESCHWENDT, APPELLANT



No. 260 Special Transfer Docket, APPEAL FROM THE JUDGMENT OF SENTENCE OF THE 13TH DAY OF JUNE, 1978, IN THE COURT OF COMMON PLEAS, BUCKS COUNTY, PENNSYLVANIA, ON NUMBERS 939 THRU 944/1976.

COUNSEL

Seth Weber, Assistant Public Defender, Doylestown, for appellant.

Stephen B. Harris, First Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Watkins, Manderino and Cirillo, JJ.*fn* Manderino, J., files a dissenting opinion.

Author: Cirillo

[ 271 Pa. Super. Page 105]

The defendant was convicted by a jury of six counts of murder in the first degree. All the murders were committed by the defendant on the same day in the same house. After further deliberation, the jury imposed the death penalty on the defendant on each count. Post-trial motions were filed and argued, and refused, and the defendant has appealed.

The defendant raised the issue of insanity at his trial. The trial judge properly charged the jury that it could bring in verdicts of guilty of murder in the first degree, or not guilty by reason of insanity. However, the trial judge refused the defendant's request that he charge the jury as to the consequences of a verdict of not guilty by reason of insanity. The trial judge's refusal to so charge was correct at the time of trial. However, the Supreme Court subsequently in the case of Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), decided that a trial judge should charge as to the consequences of a verdict of not guilty by reason of insanity. The defendant urges that we apply the Mulgrew decision retroactively. We hereby decline to do so because many cases have held that new decisions will not apply retroactively unless they involve constitutional issues: Commonwealth v. Ernst, 476 Pa. 102, 381 A.2d 1245. We see no constitutional issue involved in Mulgrew, and will therefore not apply that decision retroactively in this case. The trial court's charge was therefore proper.

The defendant also complains of the failure of the trial judge to charge in respect to alternate definitions of insanity, the defendant having presented several points for charge which would have included an expanded definition of insanity. However, the court charged under the M'Naghten test, under which the jury was charged that in order to find

[ 271 Pa. Super. Page 106]

    the defendant insane he must, at the time he committed the act, either did not know the nature and quality of the act or he did not know that it was wrong. That is the correct charge under Pennsylvania law, and no expansion of the definition was necessary. The M'Naghten test is still the rule in Pennsylvania for a determination of insanity: Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974); Commonwealth v. Walzack, 468 Pa. 210; 360 A.2d 914 (1976). Any further expansion of the definition would probably have served only to confuse the jury rather than to clarify the definition of insanity. We hold, therefore, that the trial judge's charge was proper and formed no basis for a reversal.

The defendant challenged the array of the jury panel contending that he could not receive a fair trial because attorneys and physicians were excluded from being jurors. The challenge was denied by the trial court. Attorneys and physicians are indeed excluded from being jurors in third class counties because the Act of May 17, 1939, 17 P.S. ยง 1333, specifically provides that attorneys at law and physicians in active practice shall not be listed for jury service. The exclusion of attorneys and physicians from jury service has been specifically upheld by the Superior Court in Commonwealth v. Kloch, 230 Pa. Super. 563, 327 A.2d 375 (1974). Therefore, the challenge was properly denied.

The defendant further complains that the trial judge unduly and erroneously restricted his voir dire examination of the prospective jurors. The defendant proposed asking the jurors whether they would be reluctant to return a verdict of not guilty by reason of insanity if they were not informed of the consequences of such a verdict. That question obviously would go to the first part of this Opinion, and was properly refused by the trial judge. The defendant also proposed to ask the prospective jurors if they had any prejudice against psychiatric testimony. That question was also refused and ...


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