Commonwealth v. Cambric

380 A.2d 1224, 475 Pa. 454, 1977 Pa. LEXIS 916

• Court: Supreme Court of Pennsylvania
• Decided: December 23, 1977
• Docket: 36
• Status: Published

Opinions

OPINION

PACKEL, Justice.

The appellant, while riding with a friend in the rear of a taxi, shot and killed the driver and a woman in the front seat. For many hours the appellant had imbibed a good deal of liquor and wine. His defense was his belief that the driver and the woman were planning to rob him. The jury found him guilty of third-degree murder. We are asked to reverse the judgment of sentence because the court below, although it charged on intoxication and on voluntary manslaughter, did not charge that intoxication could reduce the crime of murder to voluntary manslaughter.¹

No such charge was requested² and hence the issue was waived. Pa.R.Crim.P. 1119(b). The same point, however, is raised by appellate counsel on the ground that trial counsel was ineffective in failing to make the request. This claim manifestly has no validity if the instruction is an incorrect legal proposition.

At the time of the homicide in March of 1976, the Crimes Code, 18 Pa.C.S.A. § 308, provided:

“Intoxication or drugged condition are not, as such, defenses to a criminal charge; but in any prosecution for any offense, evidence of intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to negative an element of the offense.”

Consonant with this provision, we held in Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975), that intoxication could be shown to negate the presence of specific intent whenever it was an element of a crime and that this rule was not limited to felonious homicide.³

As to the allowance of intoxication to constitute a basis for reducing murder to voluntary manslaughter, the Graves case, 461 Pa. at 125, 334 A.2d at 664 analyzed the prior cases dealing with that specific issue as follows:

“Each of these cases, faced with the issue, recognized that intoxication was not a basis for excuse or mitigation but was germane to the issue of the existence of premeditation and deliberation. While it is true that they concluded that the evidence was not to be used to reduce the crime to voluntary manslaughter, and concededly in some instances mention a distinction between a lesser degree and another grade of crime, a careful reading of these cases indicates that the crucial consideration for their conclusion was that the fact of intoxication was irrelevant to the question of the absence or presence of legal provocation and passion.”

The theory of the appellant seems to be that intoxication is relevant for establishing that malice, a requirement for murder, was absent. Yet, the term “malice” covers a wide range of state of mind, including recklessness.

“It is true that malice, express or implied, is an absolute essential of murder. However, legal malice may be inferred and found from the attending circumstances. It consists either of an express intent to kill or inflict great bodily harm, or of a ‘wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty,’ indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life.”

Commonwealth v. Lawrence, 428 Pa. 188, 193-94, 236 A.2d 768, 771 (1968). The element that distinguishes murder from voluntary manslaughter is the presence of passion in its broad sense.⁴ Since murder in the third degree does not require specific intent and since the passion must be of a justifiable nature,⁵ there was no ineffective assistance of counsel in failing to request an instruction that intoxication can reduce murder to voluntary manslaughter.

Judgment of sentence affirmed.

NIX, J., filed a concurring opinion. EAGEN, C. J., and ROBERTS, J., concur in the result. MANDERINO, J., dissents.

1 . The only other issue raised by the appellant relating to the sufficiency of the evidence has no merit.

2 . The only request as to intoxication was complied with. It related to the reduction of murder from the first degree to the third degree.

3 . In April of 1976 the Crimes Code, 18 Pa.C.S.A. § 308 (Supp.1977-78), was amended so that the present rule is:

“Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.”

4 . “Voluntary manslaughter is a homicide intentionally committed under the influence of passion as distinguished from malice. Passion includes any emotions of the mind known as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection.” Commonwealth v. Harris, 472 Pa. 406, 408, 372 A.2d 757, 758-59 (1977).

5 . “A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title, but his belief is unreasonable.” 18 Pa.C.S.A. § 2503(b). The reference to Chapter 5 includes:

“When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.” 18 Pa.C.S.A. § 503(b).