Commonwealth v. Moore

344 A.2d 850, 463 Pa. 317, 1975 Pa. LEXIS 994

Opinions

OPINION

EAGEN, Justice.

The appellant, Carol Moore, was indicted by the grand jury of Allegheny County on charges of murder and voluntary manslaughter in connection with the death of her husband, James Moore. She was also indicted on the charge of involuntary manslaughter. Although defense counsel sought consolidation of the indictments, the case proceeded to trial upon only the murder and voluntary manslaughter charges.

After a jury trial the appellant was convicted of voluntary manslaughter and sentenced to serve a maximum of three years imprisonment. Post trial motions were timely filed and denied. This direct appeal from the judgment of sentence then followed. ‘

The appellant contends the trial court committed reversible error in refusing, after timely motion,¹ to consolidate for trial the two indictments arising out of the same criminal conduct, one indictment being for murder and voluntary manslaughter, the other for involuntary manslaughter. She asserts the failure to consolidate the indictments and the concomitant refusal to charge the jury on involuntary manslaughter ² prevented the jury from understanding the full significance of the law of homicide in Pennsylvania and led to a compromise verdict of voluntary manslaughter.

It is well-established that the propriety of consolidating separate indictments for trial is ultimately within the sound discretion of the trial court and the exercise of this discretion will be reversed only where it clearly appears that the rights of the defendant were thereby prejudiced. Commonwealth v. Patrick, 416 Pa. 437, 445, 206 A.2d 295 (1965); Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 132, 151 A.2d 480 (1959); Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 446, 71 A.2d 799 (1950), cert. denied, 339 U.S. 990, 70 S.Ct. 1015, 94 L.Ed. 1390 (1950). While cognizant of the discretion vested in the trial court, we believe that failure to proceed on an involuntary manslaughter indictment, when consolidation is requested, is prejudicial error where the evidence presented would support such a verdict. Commonwealth v. Thomas, 403 Pa. 553, 170 A. 2d 112 (1961). See also Commonwealth v. Robinson, 452 Pa. 316, 305 A.2d 354 (1973); Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 (1938).³ This is such a case.

The facts of this case ⁴ indicate that on the day of the shooting, the deceased returned home from a motorcycle club meeting apparently in a hostile mood. While the appellant prepared dinner for her husband, he began cursing and yelling at her. Deciding that she had had enough of this treatment, the appellant went upstairs to their bedroom and prepared to leave her husband. She grabbed her pocketbook, placed some savings into it, and returned downstairs. When the appellant told her husband she was leaving him, he indicated that he would prevent her from going. The appellant then went back upstairs, placed her husband’s loaded gun into her pocketbook, and proceeded downstairs. The deceased was later found on the floor of the living room with a fatal gunshot wound of the chest.

Appellant’s contention is that the killing of her husband was accidental and involuntary, resulting from a struggle over the gun in her pocketbook.⁵ This struggle allegedly occurred when her husband, seeking to prevent her from leaving with their savings, thrust his hand into her pocketbook and felt the gun. Since her hand was already in her pocketbook, feeling for her keys, it is contended their hands came together on the gun, precipitating a fight for control of it. Appellant claims that during this struggle the gun came out of her pocketbook and discharged, fatally wounding the deceased.

Although the Commonwealth, to refute the appellant’s story, did present evidence indicating that no struggle took place, we need only examine the appellant’s version in passing upon the propriety of consolidation, For it is within the jury’s province to resolve conflicts in evidence, find where the truth lies and to determine the facts. Cf. Commonwealth v. Lowe, 460 Pa. 357, 333 A.2d 765 (1975); Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972). Thus, if a jury, giving credence to a defendant’s version of an encounter could find that defendant guilty of involuntary manslaughter, fundamental fairness dictates the consolidation, upon request, of that indictment with the murder and voluntary manslaughter indictments as possible jury verdicts. As noted in Commonwealth v. Thomas, supra, the failure to consolidate leads to a refusal to instruct the jury on involuntary manslaughter. In those instances where an involuntary manslaughter verdict would be supported by the evidence, the failure to so acquaint the jury prevents it from operating with full knowledge of the relevant law and precludes the defendant from having a fair trial.

Involuntary manslaughter, which differs from murder in that specific intent and malice are absent, encompasses, “ ‘the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.’ ” Commonwealth v. Mayberry, 290 Pa. 195, 198, 138 A. 686, 687 (1927). See also Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973); Commonwealth v. Flax, supra. Where the act itself is not unlawful, to make it criminal, the negligence must be such a departure from prudent conduct as to evidence a disregard for human life or an indifference to the consequences. Commonwealth v. Feinberg, 433 Pa. 558, 566, 253 A.2d 636 (1969); Commonwealth v. Aurick, 342 Pa. 282, 288-289, 19 A.2d 920 (1941).

Instantly, appellant’s version, if believed by the jury, would have supported a verdict of involuntary manslaughter.⁶ Although her placing of the gun into her pocketbook for protection would not be an “unlawful act” within the definition of involuntary manslaughter, see Commonwealth v. Flax, supra, 331 Pa. at 157, 200 A. at 638, the jury may well have considered the subsequent struggle over a loaded weapon as needlessly creating a danger to human life, thus constituting criminally negligent conduct. Therefore, since the jury could have viewed appellant’s conduct as criminally negligent, it was error for the trial court to deny consolidation upon request and fail to present involuntary manslaughter as a possible verdict.

Judgment reversed and new trial ordered.

ROBERTS, POMEROY and MANDERINO, JJ., filed concurring opinions. NIX, J., filed a dissenting opinion. JONES, C. J., took no part in the consideration or decision of this case.

Footnotes

1

. Rule 219(d) of the Pennsylvania Rules of Criminal Procedure provides, “The court, of its own motion, or on application of a party, may order separate trials of counts, grant a severance as to any defendant, or provide other appropriate relief.” A motion to consolidate for trial separate charges or indictments is presented as a request for “other appropriate relief.”

Instantly, defense counsel filed a pre-trial motion to consolidate the indictments but the trial court refused to rule upon the motion at that time. At the conclusion of the Commonwealth’s case, defense counsel renewed the request for consolidation, but the trial court continued to reserve judgment. Finally, following presentation of the defense and prior to submitting the case to the jury, the trial court denied the motion to consolidate.

2

. The trial court, in accordance with a long line of cases holding that instructions on involuntary manslaughter need not be given to the jury when there is no indictment therefor, refused to charge the jury on involuntary manslaughter. See, e. g., Commonwealth v. Edwards, 431 Pa. 44, 52, 244 A.2d 683 (1968); Commonwealth v. Comber, 374 Pa. 570, 575, 97 A.2d 343 (1953); Commonwealth v. Palermo, 368 Pa. 28, 31-32, 81 A.2d 540 (1951); Commonwealth v. Hardy, 347 Pa. 551, 554, 32 A.2d 767 (1943). The appellant assigns this as error. However, in view of our decision today, holding that the failure to grant consolidation was improper, we need not re-examine the continued vitality of these decisions.

3

. The Commonwealth’s reliance upon Commonwealth v. Reid, 432 Pa. 319, 247 A.2d 783 (1968), is misplaced as there was no indict ment charging Reid with involuntary manslaughter and, consequently, no motion for consolidation to rule upon.

4

. The evidence consisted in large part of a voluntary, extrajudicial statement given the police by the appellant and her in-court testimony, corroborative of the prior statement. •

5

. The appellant claims the gun was placed into her pocketbook in order to prevent her husband from using it against her.

6

. Commonwealth v. Jones, supra, and Commonwealth v. Garrison, 443 Pa. 220, 279 A.2d 750 (1971), are distinguishable on this point. In Jones, the only version of the facts presented indicated the appellant’s actions were not of an unintentional, accidental or involuntary nature so as to reduce the offense to involuntary manslaughter. In Garrison, the appellant’s testimony sought to establish self-defense and, in no way, indicated the elements of involuntary manslaughter were present.