Commonwealth v. Williams

415 A.2d 403, 490 Pa. 187, 1980 Pa. LEXIS 687

Opinions

OPINION OF THE COURT

FLAHERTY, Justice.

In a jury trial in the Philadelphia Court of Common Pleas the appellant, Fred Williams, was convicted of second degree murder, robbery, burglary, and possession of an instrument of crime. Post-verdict motions were denied. Judgment of sentence was set at life imprisonment for the murder conviction and concurrent terms of imprisonment were imposed for the remaining offenses.

Appellant, in the course of committing burglary and robbery, used an iron pipe to beat to death a fifty-four year old blind man who owned and lived in the apartment building where the burglary and robbery occurred. Eyewitnesses observed the appellant, lying in wait for the blind man to descend a flight of stairs, step from a hiding place and deliver twelve forceful blows with a metal pipe to the face, skull, and neck of the man. During this beating, the blind man, who carried a knife for protection, inflicted a number of minor cuts upon appellant. The blind man, believing a robbery to be in progress in the first floor apartment where he resided, had descended the steps. Appellant initiated the attack, and, while continuing to strike the blind man, said “the MF ain’t dead yet, but he going to die now.”

Appellant’s first seven contentions are that: 1) the court erred in not charging the jury under 18 Pa.C.S. § 308, relating to evidence of intoxication being considered to reduce the degree of a murder conviction; 2) certain testimony should not have been admitted into evidence under the res gestae exception to the hearsay rule; 3) the court’s charge to the jury on voluntary manslaughter was inadequate; 4) error was committed in instructing the jury as to self-defense; 5) the robbery charge should have been withdrawn from the jury’s consideration; 6) inflammatory photographs were improperly admitted into evidence; and 7) the burglary verdict was not sustained by sufficient evidence. We find the foregoing assertions to be without merit. Appellant’s eighth assignment of error is that the jury should have been charged on involuntary manslaughter.

The evidence establishes beyond a reasonable doubt that appellant committed murder during the commission of burglary and robbery. Appellant asks this Court to overturn his second degree murder conviction, and to grant a new trial, because the jurors were not instructed upon the elements of involuntary manslaughter. No evidence whatsoever, from any source, appears in the record to support a determination that the killing resulted from an accident or negligence. Indeed, given the facts of this case, it would be ludicrous to suggest that appellant recklessly or negligently struck twelve blows with an iron pipe to the blind victim’s head.

At trial, defense counsel made no reference to involuntary manslaughter in his summation and suggested to the jury no basis for returning such a verdict. Only after summation, in fact, did defense counsel raise the subject by requesting that the court submit an involuntary manslaughter charge.

The trial court refused the requested instruction, because, at the time of trial,¹ it was the established rule that a jury was without power to return a verdict of involuntary manslaughter upon an indictment for murder. See Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) (Opinion of Mr. Justice Pomeroy); Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (Opinion of Mr. Justice Roberts). Three months after appellant’s second degree murder conviction, this Court ruled for the first time that the Crimes Code of 1972,18 Pa.C.S. § 101 et seq. rendered an involuntary manslaughter conviction permissible in a murder prosecution. Commonwealth v. Polimeni, supra; Commonwealth v. Garcia, supra; Commonwealth v. Ford, 474 Pa. 480, 378 A.2d 1215 (1977). Since these cases were handed down, trial judges have lacked a standard approved by a majority of the full Court defining the circumstances under which a defendant’s request for an involuntary manslaughter charge should be granted. To clarify this situation, we now hold that in a murder prosecution, an involuntary manslaughter charge shall be given only when requested, and where the offense has been made an issue in the case and trial evidence reasonably would support such a verdict. The rule is firmly grounded in logic and policy, for to instruct a jury on possible verdicts that are unsupported by any evidence can serve only to pervert justice: Not only may the jury be confused by what appear to be irrelevant instructions, and thereby possibly reach a mistaken verdict, but a conviction for the lesser offense may occur out of discriminatory favor for the defendant or out of animosity for the victim, or the jury might substitute its own visceral reaction for the classification established by the legislature. See, e.g., Commonwealth v. Hinson, 485 Pa. 626, 628-633, 403 A.2d 564 (1979) (Opinion of Mr. Justice Larsen); Commonwealth v. Thomas, 482 Pa. 312, 322, 393 A.2d 1122 (1978) (Opinion of Mr. Justice Pomeroy); Commonwealth v. Manning, 477 Pa. 495, 503, 384 A.2d 1197 (1978) (Opinion of Mr. Justice Nix); Commonwealth v. Garcia, 474 Pa. at 478-479, 378 A.2d 1199 (Opinion of Mr. Justice Nix). Nor can the involuntary manslaughter charge be justified as giving a jury discretion to dispense mercy, since it is in the realm of arbitrariness to convict one of the misdemeanor of involuntary manslaughter when all evidence rationally indicates felonious homicide. Our review of the record indicates no basis upon which appellant could rationally have been convicted of involuntary manslaughter, and, hence, he was not entitled to a charge thereon.

Judgment of sentence affirmed.

NIX, J., joins in the opinion of the court and also files a concurring opinion. LARSEN, J., files a concurring opinion. ROBERTS, J., files a dissenting opinion in which O’BRIEN, J., joins.

Footnotes

1

. June 28, 1977.