dissenting.
I dissent. In this Post Conviction Hearing Act (PCHA) proceeding, the majority cites trial counsel’s failure to request a specific instruction that the jury could find appellant not guilty by reason of insanity was ineffectiveness and required a new trial. I believe PCHA petitioners seeking relief via ineffectiveness should be required to show prejudice, in the sense that the outcome of the trial would likely have been different if the course foregone had been taken. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). On this record, petitioner has not done so.
*298Pennsylvania law on the burden of proving insanity is in confusion. Prior to Commonwealth v. Vogel, 440 Pa. 1, 268 A.2d 89 (1970), sanity was presumed and the burden of proving insanity was upon the defendant asserting it. The defendant was required to prove the alleged defective mental condition by a preponderance of the evidence. See, e.g., Commonwealth v. Carluccetti, 369 Pa. 190, 85 A.2d 391 (1952). In Vogel, Mr. Justice Roberts first articulated the principle that, as an element of mens rea, the burden of proving sanity rests with the Commonwealth. Commonwealth v. Vogel, supra (Roberts, J., opinion in support of per curiam order). This theory was later endorsed as the law of this Commonwealth. Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974) (once defendant offers evidence of insanity, Commonwealth must prove sanity beyond reasonable doubt). See also Commonwealth v. Tempest, 496 Pa. 436, 437 A.2d 952 (1981). I believe these cases confuse mens rea with the insanity defense. While a defendant may not be forced to disprove an element of a crime, “the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime.” United States v. Amos, 803 F.2d 419, 421 (8th Cir.1986) quoting Mullaney v. Wilbur, 421 U.S. 684, 706, 95 S.Ct. 1881, 1893, 44 L.Ed.2d 508 (1975) (Rehnquist, J., concurring). Our statutory law requires the defendant claiming insanity to shoulder the burden of proof. 18 Pa.C.S. § 315. It is in conflict with Vogel and Demmitt. Unless Vogel and Dem-mitt are constitutionally required, a conclusion apparently not necessary under federal precedent, the statute effectively overrules Vogel and Demmitt and should control.1
*299In the instant case, the trial judge instructed the jury that the Commonwealth had the burden of proving appellant’s sanity beyond a reasonable doubt. N.T., May 29, 1979 at 55. By not having to prove his own insanity as required by present law, appellant could only have benefited from the judge’s instruction burdening the Commonwealth. Indeed, a specific instruction on a verdict of not guilty by reason of insanity would seem to imply an affirmative defense, as set out in the statute.
Moreover, I believe that the majority has unwittingly turned Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), into a per se rule. As we noted in Commonwealth v. McCann, 503 Pa. 190, 469 A.2d 126 (1983), Mulgrew was not intended to announce a per se rule requiring an instruction on the consequences of not guilty by reason of insanity verdict in all cases whether or not requested. Id., 503 Pa. at 195, 469 A.2d at 129. In the instant case, the judge’s charge to the jury included a general instruction on the law of insanity. N.T. at 55-57. Moreover, upon request of the jury, the trial judge redefined the legal definition of insanity. Id. at 75-77. I believe the jury was adequately apprised of the law of insanity. An instruction to the jury must not be examined in artificial isolation but must be judged in the context of the overall charge. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983). As appellant has not pointed to any prejudice stemming from the use of a general instruction as opposed to a specific instruction mentioning a possible verdict of not guilty by reason of insanity, he is not entitled to relief.
McDERMOTT, J., joins in this dissenting opinion.. In Amos, supra, the Eighth Circuit upheld the constitutionality of the Federal Insanity Defense Reform Act, 18 U.S.C. § 20 (Supp.1986). The Act requires a criminal defendant to prove his insanity by clear and convincing evidence. I believe that 18 Pa.C.S. § 315, requiring a defendant to prove his insanity by a preponderance of the evidence, will similarly pass constitutional muster. See Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (Oregon statute requiring criminal defendant to prove his insanity beyond a reasonable doubt not violative of due process).