dissenting.
I dissent. Appellant, Irvin Gass, has not met his burden under the Post Conviction Hearing Act (PCHA) of demonstrating that his trial counsel was constitutionally ineffective for failing to request a specific instruction that appellant could be found not guilty by reason of insanity, or for failing to request an instruction under Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977) explaining to the jury the consequences of such a verdict, i.e. the possibility that involuntary commitment proceedings would be initiated against a defendant found not guilty by reason of insanity.
In the instant proceedings under the PCHA, appellant had the burden of proving his eligibility for relief, specifically that the representation afforded him by trial counsel was constitutionally inadequate. 42 Pa.C.S.A. §§ 9543(3)(vi) and 9549; Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980). Our standards for gauging the effectiveness of counsel’s representation have evolved essentially into a three-pronged test: the threshold inquiry is whether the *295strategy or tactic which counsel has foregone and which forms the basis of the assertion of ineffectiveness was of arguable merit, for counsel cannot be found ineffective for failing to raise a baseless or frivolous claim; if the claim would have had arguable merit, we then determine whether counsel’s chosen tactic or omission had some reasonable basis designed to effectuate his client’s interests; and, if counsel had no reasonable basis in failing to pursue a claim of arguable merit, we must determine whether counsel’s tactic or omission prejudiced his client. See, e.g., Commonwealth v. Griffin, 511 Pa. 553, 567-70, 515 A.2d 865, 872-73 (1986), and cases cited therein. Accord Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (federal standards for reviewing claims of ineffective assistance of counsel). Viewed in this light, counsel’s failure to request a specific instruction that appellant could be found not guilty by reason of insanity and his failure to request a Mulgrew instruction did not deprive appellant of his right to effective assistance of counsel.
Obviously, appellant was entitled to a request that the jury be instructed that it could return a verdict of not guilty by reason of insanity; this claim, therefore, had arguable merit. It is also difficult to imagine any reasonable basis for counsel’s failure to request such instruction; however, it is equally difficult to fathom how such an omission in the jury instructions could have harmed appellant under, the circumstances.
The adequacy of the jury instructions must be examined in the context of the entire charge to the jury, as Justice Hutchinson points out in his dissent. Commonwealth v. Whiting, 501 Pa. 465, 469, 462 A.2d 218 (1983). The court did, in this case, instruct the jury as to the legal definition of insanity (the M’Naghten rule),1 and specifically that “you cannot find the Defendant guilty unless you are satisfied beyond a reasonable doubt that at the time of the killing *296either the Defendant had no mental disease or defect or if he did have such a mental disease or defect, that he was not as a result of that defect incapable of knowing what he was doing or judging that it was wrong to do what he did.” Court’s Charge to Jury. N.T. at 56-57. I am in complete agreement with Justice Hutchinson that these general instructions on the insanity defense (and the court’s additional instructions regarding that defense, rendered upon request by the jury, N.T. at 75-77) made it quite clear that it was to acquit appellant if it found that the Commonwealth failed to establish his sanity at the time of the killing. A specific instruction that the jury could find appellant “not guilty by reason of insanity” might have put the jury instruction in a somewhat more accurate form, but it would not have added any substance to the instructions actually given.
As to the failure to request a “Mulgrew instruction,” i.e. a clarifying instruction to the jury as to “the possible psychiatric treatment and commitment of the defendant after the return of a verdict of not guilty by reason of insanity,” 475 Pa. at 278, 380 A.2d at 352, there is also no question that such a request would have had arguable merit. However, as we stated in Commonwealth v. McCann, 503 Pa. 190, 195, 469 A.2d 126 (1983), “Mulgrew was not intended to announce a per se rule requiring in all cases, regardless of whether or not requested, an instruction on the consequences of not guilty by reason of insanity verdict.” Rather, the decision whether to request such an instruction is a matter within the realm of trial strategy. Id., 503 Pa. at 197, 469 A.2d at 127. Moreover, McCann makes it clear that the failure to request such an instruction may indeed have a reasonable basis.
In McCann, as in this case, the involuntary commitment of the appellant was governed by the Mental Health Procedures Act of 1976, Act of July 9, 1976, P.L. 817, No. 143, 50 P.S. §§ 7101-7503. Under that Act, a defendant acquitted by reason of insanity may be made subject to involuntary *297commitment on petition of the district attorney (or other interested parties or agencies); however, commitment of such a person is limited to one year unless subsequent commitment proceedings are held. 50 P.S. § 7304(g)(2)(i) and (g)(4). Accordingly, a request for a Mulgrew instruction “would have presented the prosecutor [an opportunity] to argue to the jury that the procedures provided in the Mental Health Procedures Act would permit the defendant to be released within a relatively short period of time.” Commonwealth v. McCann, supra, 503 Pa. at 197-98, 469 A.2d at 127. It does not appear, therefore, that the tactic foregone (the failure to request a Mulgrew instruction) had a substantially greater potential for success than the strategy actually chosen.
For the foregoing reasons, I would affirm the decision of the Superior Court affirming the trial court’s determination that counsel was not ineffective in failing to request a specific instruction that appellant could be found not guilty by reason of insanity or in failing to request a Mulgrew instruction.
McDERMOTT and HUTCHINSON, JJ., join in this dissenting opinion.. See Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987) and 18 Pa.C.S.A. § 315, Insanity.