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decided: December 31, 1982.


No. 80-3-365, Appeal from the Judgments of Sentence of the Court of Common Pleas of Bucks County, Nos. 939-944 of 1976 and Order of the Superior Court of Pennsylvania, No. 260 Special Transfer Docket, O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Larsen, J., concurred in the result. Roberts, J., filed a dissenting opinion in which O'Brien, C.j., and Flaherty, J., joined.

Author: Nix

[ 500 Pa. Page 122]


Appellant, George Geschwendt, following a jury trial was convicted of murder in the first degree in the killing of 5 members of the Abt family and a family friend.*fn1 In this appeal he raises a number of objections in support of his request for a new trial. We will focus in this opinion upon the question of whether the holding of this Court in Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977) is here applicable.*fn2

[ 500 Pa. Page 123]

The facts surrounding the murders were not disputed. Appellant sought to avoid criminal responsibility by reason of insanity at the time of the incident.

George Geschwendt lived across the street from the Abt family. On March 12, 1976, at approximately 8:30 a.m., he broke and entered the Abt residence. Appellant's mother, with whom he lived with a brother, had gone to work. No one was in the Abt home, as all of the members of the Abt family had gone to work or to school. He had a .22 caliber gun and ammunition which he had purchased some time prior to March 12 and falsely reported stolen the day of the purchase. In the process of his illegal entry, glass from the kitchen window was broken. In order to avoid suspicion, he cleaned up the glass and placed himself in the house in a manner that made the kitchen door visible, while simultaneously he was able to observe the living room door to the outside. He patiently laid in wait for approximately six hours; then, consecutively, as five members of the Abt family and a boyfriend entered the house, he shot and killed them one by one. During this carnage, he also killed the family dog.

The bodies of all the victims were pushed or carried into the basement. He also cleaned up the victims' blood. The dead dog was obscured from the sight of anyone who might look through the window of the ground level cellar door, by articles of clothing. He placed all spent shell casings in his pocket. The purpose of these activities which occurred after each shooting was to ensure the inability of successive victims entering the house from being aware of the prior slaughters. When Margie Abt, one of the victims, came home he secreted himself and permitted her to complete a brief telephone conversation before killing her. Although two members of the Abt family had not returned, he left the house because the constant telephone ringing made him cunningly cautious. He returned to his home by a circuitous route, in a deliberate effort to avoid detection. The shootings occurred during a time span between 3:20 p.m. and 6:30 p.m.

[ 500 Pa. Page 124]

Once home, appellant concealed the gun, the rubber gloves he had worn and his bloody clothing in the saddlebags of his motorcycle. He locked the motorcycle in the garage where it was usually kept. The next day, he drove a considerable distance to the Delaware River into which he discarded the shoes and gloves. He washed his pants and other clothing to remove the bloodstains and gave them to the Goodwill Industry. Three days later, March 16, he threw the gun, spent shell casings and the remainder of the live ammunition into the Neshaminy Creek which was nearby. The gun was later recovered by the police from the creek. While the shootings were taking place, he had worn ear protectors.

Approximately a week after the Abt killings, the Bensalem Police asked appellant to come to headquarters for questioning about the alleged theft of his gun. On March 22, he was interviewed and given a polygraph test by police. The polygraph test showed that his answers were deceptive. At 7:45 p.m. the same day, he confessed, once told of the results of the polygraph test, giving a full and detailed description of the killing, together with the events and activities related thereto which had occurred before and after the shootings. After his arraignment that evening, he gave a stenographically recorded confession. He stated to the police that he was sorry he was unable to remain in the Abt house to accomplish his purpose of killing all of the members of the family. Two members survived as a result of his early departure.

The first assignment of error is the trial court's refusal to charge the jury, upon request by the defense, as to the consequences of a verdict of not guilty by reason of insanity. This Court originally expressed the view set forth in Commonwealth v. Gable, 323 Pa. 449, 187 A. 393 (1936). In Gable we summarily rejected the contention as follows:

The third question involves the proposition that, in a homicide case, where the defense is insanity, the trial judge must state, when requested to do so, that if the verdict is not guilty by reason of insanity, it will be his duty to send the defendant to a state institution for the

[ 500 Pa. Page 125]

    insane. With this the jury has nothing to do and it was not error to refuse to so tell them.

Id., 323 Pa. at 453, 187 A. at 395.

The Gable view was thereafter the law in this Commonwealth until our decision in Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977). A unanimous Court in Mulgrew reversed the position previously adopted in Gable and held "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 return of a verdict of not guilty by reason of insanity." Commonwealth v. Mulgrew, supra, 475 Pa. at 277-78, 380 A.2d at 352. In Mulgrew we explained that the simplistic view articulated in Gable, in that punishment was not the concern of the jury and thus no explanation was required to be given to them, fails to meet the realities of the situation.

If the instant trial had occurred after the filing of our opinion in Mulgrew, it is clear that the appellant would have been entitled to the requested point of charge. However, since the trial in this appeal was concluded on July 19, 1976 and the opinion in Mulgrew was not filed until December 1, 1977, the trial court's ruling was consistent with the then prevailing statement of the law. Thus, absent a determination that the Mulgrew rule should be given retrospective application, the instant assignment of error is without merit.

This issue requires us to wrestle with the most troublesome question of the applicability of a newly articulated pronouncement of state law. See, e.g., Commonwealth v. Ernst, 476 Pa. 102, 381 A.2d 1245 (1978) (plurality opinion; Opinion in Support of Affirmance: Pomeroy, J., joined by Eagen, C.J., Nix, J. concurs in result; Opinion in Support of Reversal: Roberts, J. joined by O'Brien, J. and Manderino, J.). Even the terms "prospective" and "retrospective" are deceiving in their complexities. Although the variations are virtually infinite, the dispute has focused upon four specific options. The first option gives complete prospective effect to the newly pronounced rule. It limits its applicability to

[ 500 Pa. Page 126]

    future cases and denies the benefit even to the parties in the litigation in which the principle was first announced. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). Accord, Commonwealth v. Minarik, 493 Pa. 573, 427 A.2d 623 (1981); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) (plurality opinion); Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 (1976) (opinion announcing decision of the Court); 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. Scoleri, 399 Pa. 110, 160 A.2d 215 (1960) (opinion in support of affirmance). See, e.g., Morrissey v. Brewer, 408 U.S. 471, 490, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972).

Second, the change may be applied to future litigants, but retrospectively only to the parties at bar. See, e.g., Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973); Adams v. Illinois, 405 U.S. 278, 284-85, 92 S.Ct. 916, 920-921, 31 L.Ed.2d 202 (1972) (plurality opinion); Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); DeStefano v. Woods, 392 U.S. 631, 633, 88 S.Ct. 2093, 2095, 20 L.Ed.2d 1308 (1968); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The third option permits the change to effect all cases still on direct review at the time of the pronouncement. August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981); Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980); Mayle v. Pa. Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978) applied in Steinberg v. Commonwealth, Dept. of Public Welfare, 480 Pa. 321, 389 A.2d 1086 (1978); Grieser v. Commonwealth, Dept. of Transportation, 480 Pa. 447, 390 A.2d 1263 (1978); Tokar v. Commonwealth, Dept. of Transportation, 480 Pa. 598, 391 A.2d 1046 (1978); Dubree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978); Kenno v. Commonwealth, Dept. of State Police, 481 Pa. 562, 393 A.2d 304 (1978); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) applied in Commonwealth v. Green, 480 Pa. 446, 390 A.2d 1263 (1978); Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020

[ 500 Pa. Page 127]

(1978); Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966). The fourth allows the new principle to effect cases already final at the time that it is adopted.*fn3

Initially, it must be recognized that there is no dispute that the federal constitution is neutral on the subject. As the United States Supreme Court stated in Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965) and reaffirmed, without qualification, in United States v. Johnson, 457 U.S. 537, 542, 102 S.Ct. 2579, 2583, 73 L.Ed.2d 202, 208 (1982), ". . . the Constitution neither prohibits nor requires retrospective effect . . . ." Both Linkletter and Johnson acknowledged and affirmed the statement made in Great Northern R.R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932) that: ". . . the federal constitution has no voice upon the subject . . . ." United States v. Johnson, supra, 457 U.S. at 542, 102 S.Ct. at 2583, 73 L.Ed.2d at 208; Linkletter v. Walker, supra, 381 U.S. at 625, 85 S.Ct. at 1735. Furthermore, there is nothing in the constitution of this Commonwealth that would dictate a contrary conclusion. We therefore

[ 500 Pa. Page 128]

    can begin the inquiry upon the established premise that neither the federal nor our state constitution compels the result we reach.

An equally important indisputable fact that must be recognized at this juncture is that the deliberations of the United States Supreme Court upon this subject, while informative and worthy of close assessment, are not controlling insofar as our determinations as to the applicability to be given to changes in state law which we deem advisable. Great Northern R.R. Co. v. Sunburst Oil & Refining, supra. Certainly, where the change is deemed to be compelled by federal constitutional precept, we must anticipate the United States Supreme Court's view as to the appropriate effect to be given to the new pronouncement. Where, as here, we are dealing with matters of purely state law, it is within our province, subject of course to the proper exercise of the powers vested in this Court, to fashion a scheme most efficacious for this jurisdiction. Thus, as we consider the various views expressed by the members of the United States Supreme Court on the subject, we do so to seek to gain the benefit of their experience in the area and to profit from the wisdom of their reflective judgment on the topic. Fortified by that insight and the experience of this Court in this turbulent area, we proceed to seek a resolution of the problem.

There appears to be little support for a rule that would limit changes in state law only to future litigants and deny its benefits to the party in the proceeding in which the change is first announced. The concern with such a position is that it would stifle the initiative which is essential to a progressive, dynamic development of a system of justice. This is particularly true in the criminal law area. Whereas the resources are available in the civil area, particularly in commercial matters, to institute and pursue a matter to establish new law without expectation of benefit in that lawsuit, such is not the case of the individual defendant who is seeking relief for what is perceived by him to be a personal wrong or injustice. His concern is not the future of

[ 500 Pa. Page 129]

    the law but rather its present application to him. Thus, it is relatively simple to conclude that in the criminal law area, at least, we must permit the litigant in the matter wherein the new principle is first announced to enjoy the benefit of the change afforded.*fn4

It is also generally agreed that a rule which would routinely require the disturbance of settled matters would deter legitimate attempts to improve our system. Where the change is designed merely to embellish and reinforce the integrity of the process, the turmoil which would accompany a mandatory concept of a complete retrospective approach in finally litigated matters would erode the public's inherent respect for the stability of justice. It would also tend to discourage the adoption of new approaches for fear of the impact that would result from the change.

The vortex of the storm of controversy surrounds the question of whether the new rule should be applied to all cases on direct review at the time of the change. The basic argument in support of this view of limited retrospectivity was succinctly stated by Mr. Justice Harlan as follows:

Mackey v. United States, 401 U.S. 667, 681 [, 91 S.Ct. 1160, 1175, 28 L.Ed.2d 404] (1971) (Harlan, J., ...

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