No. 34 March Term, 1978, Appeal from the Judgment of Sentence entered on February 16, 1978 in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. 6908A November Term, 1973
John H. Corbett, Jr., Patrick McFalls, Asst. Public Defenders, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Nix, J., files a concurring opinion. Larsen, J., files a dissenting opinion in which Kauffman, J., joins.
Appellant, Melvin Douglas Brown, tried on charges of murder and voluntary manslaughter, was found guilty by a jury of murder of the second degree.*fn1 At trial, appellant raised the defense of not guilty by reason of insanity. In support of his defense, appellant presented psychiatric testimony.
In his request for points of charge, appellant's counsel requested that the jury be instructed as to the consequences of a verdict of not guilty by reason of insanity. This request
was denied. The defense renewed its request, however, after the prosecution's closing argument in which the prosecutor stated:
"I believe I indicated in my very brief opening what we intended to prove, that it was a homicide and he did it, two of the main essentials. That has been accomplished. It would almost appear that we are getting down to, well, if you accept the fact that Melvin Brown didn't know what he was doing when he was up in that room, well then, put him out in the street."*fn2
Again, the court refused the defense request for an instruction as to the consequences of a verdict of not guilty by reason of insanity. It did, however, instruct the jury that it should not concern itself with any possible future consequences of its verdict, stating that it was the court's duty to fix the penalty if the defendant was found "guilty."*fn3
Nine days after the jury's verdict of guilty was returned, this Court rendered its decision in Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977). Mulgrew unanimously held that "when insanity is raised as a possible defense to criminal charges, a jury must be instructed concerning the possible psychiatric treatment and commitment of the defendant after the ...