Commonwealth v. Jones

373 A.2d 1338, 473 Pa. 211, 1977 Pa. LEXIS 709

Opinions

OPINION OF THE COURT

O’BRIEN, Justice.

Appellant, Clinton Jones a/k/a Clinton Dupree, was tried by a judge and jury and found guilty of murder in the first degree, robbery and criminal conspiracy in connection with the death of Otis Johnson. Postverdict motions were denied and on May 12, 1975, appellant was sentenced to life imprisonment in a state correctional institution for the conviction of murder in the first degree, with a concurrent sentence of not less than ten years nor more than twenty years on the robbery conviction, and a suspended sentence on the criminal conspiracy conviction. This appeal from the conviction of murder in the first degree followed.¹

Appellant first argues that the charges and indictments against him must be dismissed and he must be discharged because of the Commonwealth’s failure to bring him to trial within two hundred seventy days of the filing of the complaint, pursuant to Pa.R.Crim.P. 1100(a)(1). We do not agree.

Pa.R.Crim.P. 1100(a)(1) provides:

“(a)(1) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1973 but before July 1, 1974 shall commence no later than two hundred seventy (270) days from the date on which the complaint is filed.”

The Comment to Rule 1100, when discussing the method of counting, provides:

“It is intended that the number of days set forth in paragraphs (a)(1) and (a)(2) be calculated as prescribed by the Act of November 25, 1970, P.L. 707, No. 230, as amended by the Act of December 6, 1972, P.L. 1339, No. 290, § 3,1 P.S. § 1908.”

Section 1908 of the Statutory Construction Act, supra, provides:

“When any period of time is referrred to in any statute, such period in all cases, except as otherwise provided in section 1909 of this title (relating to publication for successive weeks) and section 1910 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.” (Emphasis supplied.)

In the instant case, a written complaint against appellant was filed on May 7, 1974. Appellant’s trial was commenced on Monday, February 3, 1975. The two hundred and seventieth day was Saturday, February 1, 1975.

Applying § 1908 of the Statutory Construction Act, supra, Saturday, February 1 and Sunday, February 2, 1975, must be “omitted” from the computation. Therefore, appellant’s trial commenced within the time limit as set forth in Pa.R.Crim.P. 1100(a) (1).

Appellant next argues that the court below erred in denying his requested point for charge that voluntary manslaughter was a permissible verdict. We agree.

In Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), this court required: “that henceforth a defendant under indictment of murder will be entitled upon request, to have the jury advised of its power to return a verdict of voluntary manslaughter.” (Opinion in support of affirmance by Mr. Justice Nix, joined by Mr. Justice Eagen, now Mr. Chief Justice, and Mr. Justice O’Brien.)

In the instant case, appellant’s trial began on February 3, 1975, nine months after the mandate of Jones, supra.

Appellant requested that the court charge that murder in the first degree, murder in the second degree, voluntary manslaughter and involuntary manslaughter were permissible verdicts in the instant case. The court refused this point for charge. The court did, however, “discuss” voluntary manslaughter in two portions of its charge wherein it stated:

“I believe it’s clear from the evidence and I believe it’s clear from counsel’s arguments to you, that there is no manslaughter in the ease. Although I will simply define voluntary manslaughter to you when I get to it. But it’s clear under the facts that it doesn’t apply, and it certainly doesn’t apply to involuntary manslaughter, which I will not even cover.” (Emphasis added.)

“There is another definition which I will give you, although I believe that it’s clear that it does not apply to the facts of this case. But there is some belief in the law that since this is part of the definition of criminal homicide, that the jury should have the definition anytvay. And that is voluntary manslaughter. Voluntary manslaughter is defined as follows: A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation, either by the individual killed or by another whom the actor endeavors to kill, or if he had — well, I’ll stop with that. That is the definition of voluntary manslaughter, which is part of the definition of criminal homicide, but I believe it is clear that it does not apply to this case.” (Emphasis added.)

The above charge does not advise the jury that voluntary manslaughter is a permissible verdict and, therefore, such an omission by the trial court constitutes reversible error. The mere mentioning of voluntary manslaughter to a jury without defining the elements of crime and without informing the jury that it has the power to return a verdict of voluntary manslaughter is in direct contradiction of our mandate in Commonwealth v. Jones, supra.

The instant case is distinguishable from Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976) and Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). The trials in both Gaddy, supra, and Yount, supra, were conducted prior to this court’s mandate of Commonwealth v. Jones, supra. Moreover, in both cases, the trial dourt did instruct the jury that voluntary manslaughter was a permissible verdict but then proceeded to express its opinion as to whether the facts could support a verdict of voluntary manslaughter.

Appellant raises other allegations of error which we need not discuss because of our resolution of the above issue.

Judgment of sentence reversed and case remanded to the Court of Common Pleas of Philadelphia for a new trial.

JONES, former C. J., took no part in the consideration or decision of this case. ROBERTS, J., files a concurring opinion in which MANDERINO, J., joins. POMEROY, J., joins in the opinion of the Court and files a separate concurring opinion in which NIX, J., joins.

1 . No appeal has been taken to this court from the robbery or criminal conspiracy convictions and they remain.