*1 v. Amato, Appellant. 1972. Before C. Argued April 18, J., Eagen, Jones, JJ. Nix Pomeroy, O’Brien, Roberts, Manderino, *2 Morris H. for Wolff, appellant.
Milton M. Stein, Assistant District Attorney, him Judith Assistant Dean, District James Attorney, D. Crawford, District Deputy Richard Attorney, First Assistant District Arlen Sprague, Attorney, Specter, District for appel- Attorney, Commonwealth, lee. by
Opinion Mr. November Justice Roberts, 1972:
On October 1, 1968, upon by conclusion of a trial John jury, appellant Amato was convicted of first de- gree and sentenced to life imprisonment. Post- trial motions were denied. Because we find no merit in the three issues appellant presses on ap- this direct we peal, affirm.
The contention raised by appellant first is that trial court erred in instructing the it could jury that not return a verdict of voluntary manslaughter. Appel- it lant, should be this noted, interposed objection to charge. Despite appellant’s failure to object to charge, he now argues that there was evidence intro- duced at trial which would a volun- support finding of tary manslaughter. A review of the record, however, convincingly disproves appellant’s assertion.
The murder for which appellant was allegedly committed during of a robbery grocery store. Appellant denied the commission robbery, and there was no eyewitness to the robbery the mur- der. The deceased was the proprietor of the store. As the sole basis for a charge of voluntary manslaughter of bruises on the relies on the existence
appellant now by unexplicated this barren fact, deceased. Certainly asser- appellant’s support does not any other evidence, an have been killed during tion that the deceased could trial court unrelated to the altercation factual basis that there was no quite properly ruled a charge persuaded appellant’s argument
Nor are we
a
provide
facts which would
the absence of
defend
a
a
basis for
charge of
in
charge.1 In
ant
absolute
man
charge
case no
for a
request
stant
a defend
Regardless
made.
of whether
it,2
requests
he
ant has
such
when
is
request
no such
where,
it seems clear that
here,
required
made
submit
*3
request
In
a defendant’s
to the
the absence of
jury.
limit
strategy
of counsel’s trial
to
part
could be
ac
complete
murder or
to a verdict of
jury’s options
to
and
be error for
it
quittal
would, indeed,
Common
strategy.
on that deliberate trial
See
intrude
449 Pa.
A.
456
584,
wealth v.
297
McGrogan,
Circuit
In
situation the Third
analogous
a very
in
reached
the same result
precisely
Court
Appeals
1
rely
purports
part
Appellant
on Commonwealth v.
to
in
Hoff-
man,
348,
(1970),
A. 2d
Commonwealth v. Den-
Pa.
266
726
and
439
merely
nis,
525,
held
Pa.
The Commonwealth’s the victim’s death was caused unequivocally fied *4 head. applied force to the a mechanical prove circumstantial evidence to presented monwealth to the deceased’s head was done applied force of the the course during Embry, supra, Common-
In Commonwealth this Court reversed Radford, supra, convic- wealth expert medical was only unable to tes- tions where tify with more than a “reasonable “probability” or a of degree medical certainty” the deceased his met death from one Here specific origin. is conceded that death conld only resulted applied force to the deceased’s head. The only remaining issue the jury was to determine whether where the force was applied during robbery. This Court has noted long that “circumstantial evidence alone suffice” to may prove any element of the crime of homicide “so long the inferences therefrom arising in prove ques- tion beyond a reasonable doubt.” Chester, 188 A. 45, 50, Appellant’s last assignment error is that the trial court erred not allowing appellant to admit into evi- dence the fact that a co-indictee, charged with the same had been robbery-murder, acquitted. Appellant argues that such evidence was relevant and because probative his during Commonwealth was un- proceeding der a theory that he and the co-indictee acted in con- spiracy to perpetrate crime question.
Appellant crime not, however, charged with the A of the conspiracy. review record reveals that dur- ing entire course of the two three-day trial only references oblique were made to the existence of co-indictee. One Mrs. witness, Regina testi- McNally, fied that on the evening the robbery-murder appel- lant and James Di Pasquale, ap- left co-indictee, pellant’s apartment couple for a Another hours. witness, Miss Linda Goodwin, testified that several after the crime in nights question the confid- appellant ed in her that he Di Pasquale had robbed a store and had a with the owner. fight This evidence in- not for purpose establishing conspira- troduced but cy, prove appellant’s guilt. The sole at issue appellant trial was whether committed a murder dur- felony. the course of a The resolution ing of is- *5 the by slightest been aided in the sue not have would jury another that admission into evidence the had committed another defendant not concluded that Quaranta, robbery-murder. the See trial Atl. The 264, 271, appellant’s proffered to admit refused properly evidence.
The sentence is affirmed. judgment in the result. Pomeroy Mr. Justice concurs by Opinion Concurring : Mr. Justice Manderino the of sentence concur Although judgment I po- majority’s I the disagree should be with affirmed, the be trial court should controlled sition the manslaugh- on jury voluntary matter of charging strategy counsel for the wishes of defense ter, by has Defense counsel or other purposes purposes. consider volun- jury to decide that the will not tary as as the defendant, well Commonwealth, proper in a verdict We jury. interest man- verdict held that a
consistently jury homicide case is proper though in a slaughter voluntary manslaughter. not on charged jury Frazier, monwealth illogical and unjust be to allow would from voluntary manslaughter
defendant eliminate have held it just consideration we would jury the trial court the Com- unjust allow illogical or take the issue to eliminate monwealth from the voluntary manslaughter jury. See Frazier, supra. the trial court can say properly
If we take man- jury question away defense de- cases because counsel so some trial strategy, prop- as matter of we could not sires, erly allow a verdict of voluntary stand. is law is clear that Yet, even if on a verdict such manslaughter, We proper. cannot with give defendant one hand and take it consider the other and away *6 the manual dexterity the product jurispru- of sound dence.
I
very seriously doubt
we would allow
judge withdraw
degree
second
murder from the
because the
simply
defendant so
Com-
requested. The
monwealth would
objection
have a most serious
such a limitation
unjust
on the
be
jury’s options would
to the Commonwealth’s interest, yet the rationale of the
majority would
lead to
necessity
such a result.
That
distinguishes
which
the element of malice. Commonwealth
v.
275 Pa.
monwealth v. 445 Pa. 282 Conner, 23 36, A. 2d (1971). The thin line of demarcation more is, often than not, always invisible. should be the vision scrutinizing of twelve that determines jurors visibility— line’s not the trial court, counsel, prosecutor. Com- defense v. monwealth ex rel. Johnson 402 Pa. Myers, 167 451, A. Commonwealth v. (1961); Ewing, 2d 661 (1970); 264 A. Commonwealth v. Horn- 88, Pa. 441 270 A. 195 57, berger, also We and held, correctly so, that voluntary is a verdict proper even in the absence because provocation and passion jury may find malice of other because circumstances in a given case. 439 Commonwealth Pa. Hoffman, 266 A. 2d (1970); Commonwealth Kellyon, R. Gable, 7 S. & (1923); If justice there is area of human requires deliberation and the voice of a jury, taking must the area of decision concerned with of one human life another. Are the total circum stances neat simple homicide so surrounding any that a should not be at given for consideration least three categories of human de culpability—first gree second murder, degree man murder, slaughter? I think not. Only court, not the jury, should decide the question delicate of the of hu degree man culpability killing another human.
In this case, error however, was not called the trial court’s attention objection and no raised to the charge. Unless under the total circumstances a given case, counsel’s failure object amounts to ineffective assistance of the defendant is not counsel, *7 entitled to relief. In this case there is no allegation evidence from which it can be concluded counsel ineffective. judgment should, therefore, affirmed. Velasquez, Appellant.
Commonwealth