*1 433 Pa. v. Robinson, Cf. Commonwealth jury. 249 A. 2d trial ordered. reversed and new
Judgment result. concurs Justice Mandebino Mr. in the consid- took no part Mr. Chief Justice eration or this case. decision of Appellant. v. Jones, *2 Before January 10, 1972. C. J.,
Submitted Jones, and Manber- Roberts, Nix Pomeroy, Eagen, O’Brien, JJ. ino, for appellant.
Julian F. King, Martin and Milton Stotland, Belsky H. Maxine J. D. District James Craw- Stein_, Attorneys, M. Assistant Richard A. Attorney, Sprague, District ford, Deputy *3 and Arlen Specter, Assistant District Attorney, First for Commonwealth, appellee. Attorney, District 1973: Opinion January 19, Eagen, Me. Justice in- was Washington Jones, The appellant, George man- voluntary in hills for murder, dicted separate The and arson. involuntary manslaughter slaughter, life of a out of a fire which took the grew charges destroyed Sean and McKinnon, infant, five-week-old of a house at 2010 Federal Street dwelling interior the in Philadelphia. called was first the issue was Jones
When at on murder and arson indictments arraigned and then at the direc- of the district attorney request he on the arraigned involuntary of the court tion indictment. Pleas not guilty were manslaughter After trial the jury the three indictments. entered to of arson and guilty guilty a verdict returned direction of the By in the first degree. court, murder on not man- found guilty involuntary Jones slaughter denied, Post-trial motions were indictment. on sentenced the murder conviction Jones was imprisonment jury’s life directed. Sen- as verdict imposed An on tence was not the arson conviction. judgment appeal im- in from was filed this Court posed appeal An from the on the murder conviction. Superior filed in the arson conviction was Court subsequently appeals here. certified Both were submit- disposed on in ted to us briefs and will be this one opinion. judgment a final
Since was not entered the arson appeal premature conviction, that case is quashed. bewill Cf. Commonwealth v. Pa. Pollick, 420 215 A. 2d initially sufficiency note that while the We evidence sustain conviction of murder the first degree challenged, is not we have reviewed nonetheless, completely the record and are satisfied the trial testi- mony amply supports this conviction. From the testi- jury mony finding was warranted that after- place threatening to “burn the Jones deliber- down”, ately spilled gasoline over the floor of the first floor five-gallon of the house from rooms involved can ignited gasoline and then with a lit match. The con- flagration followed. challenging validity
In of the murder conviction imposed principally and sentence thereon, asserts right speedy he was denied his constitutional to a trial1 right The to a is a fundamental contained *4 (applicable through within the Sixth Amendment to the States Amendment), provides: prosecu- Fourteenth which “In all criminal tions, enjoy right speedy publie the accused shall to a and trial, by jury impartial an of the State and district wherein the committed, crime shall have been which district shall have been by law, previously ascertained and to be of the informed nature accusation; be and cause of the to confronted with the witnesses compulsory process against him; obtaining to have for in witnesses favor, of and to have the Assistance Counsel for his his defense.”
446 thirty-two
because the trial did not commence until his arrest. months after
A
and
months between arrest
lapse
thirty-two
mean
has been
trial does not
the accused
necessarily
But
in
denied a
trial
the constitutional
sense.2
speedy
means to
the courts should
reasonable
employ every
that
do not occur.
delays
see
See
The
Hamilton,
v.
449 Pa.
447 a consid connection with of case in the facts the instant of the as those of as well society, eration of the right and oppressive from undue to be protected accused, rights In these balancing to trial. prior incarceration in the considered, be all factors are to relevant 92 S. Ct. 514, of Barker v. 407 U.S. Wingo, recent case factors four such identified 2182 Court (1972), necessarily compels “A test balancing when it said: hoe on an ad cases to speedy-trial courts approach of the more than some identify can do little basis. We in determining assess factors which courts should of been deprived defendant has whether a particular in different them some Though might express his right. of delay, four factors: Length identify we ways, of for the defendant’s assertion the reason delay, Id. at 530, to the defendant.” his right, prejudice 92 Ct. at 2192.4 S. length
In Barker the Court characterized Under the facts a mechanism”. “triggering as delay in the factors identified sential Klopfer, supra, and concern possibilities that need not review Bather, with such be tion to difficult defend himself.’ oppressive factors dealing carried 92 S. this The Court Anglo-American have with they and sensitive constitutional protect other Ct out incarceration that finding accompanying no talismanic a funramental are at 2193. with ” long circumstances that further Id. at specifically related factors above as at least U.S. full delay history again here. a guarantee legal balancing 377-78, prior recognition at deprivation stated: “We three basic demands of public qualities; will either a 223-226, affirmed system: as 89 S. Ct. impair and must be considered of the has accusation, may process. 87 necessary or sufficient condi- courts must still universally ‘[1] to in the Constitution.” Id. at be S. Ct. regard none of the four accused, at 577. [2] relevant. ability Suffice But, right accused’s interest prevent at minimize this been because we are of an accused to 993-995, [3] criminal it to remember In process speedy engage thought undue and sum, limit the together and we anxiety justice these trial. must es- a thirty-two-month delay clearly a the instant case the length inquire require into sufficient time to us to go the other into factors which the balance. A second in Barker identified factor, Court, rights determining to be considered in if the of the *6 delay in accused were violated is the reason for the bringing him In to trial. relation to this the record following sustains the court. conclusions the trial While the case was not listed for trial in the first instance until eleven months after the Jones arrest, prejudice by delay no suffered this and in fact was not ready during period. request for trial this A for a psychiatric the results of which could examination, hopefully charges be used in defense of the not eighteen made until after the months After the arrest. listing, case received its initial trial nine continuances granted, request five of were these at the of the de- request attorney, and two fense at the of the district objection way to no which was entered and which in no attempted delay hamper to the trial in order to Additionally, defense. the case was from removed purpose plea bargain- in one trial list instance for the of ing negotiations another instance not reasons from discernible the record. do While we not look with delays, persuaded favor on such we are not that under delays the circumstances the constituted a violation of right speedy to a Jones’ trial.
A third factor to be considered is the of assertion right to trial. The record shows that right day never asserted this until the of the actual object noted before, trial. As Jones did not to the con- granted to the tinuances Commonwealth, and in this kept regard requested it must also be in mind that he continuances. five prejudice factor to be
A fourth considered is the to respect prejudice to defendant. With the United Supreme following stated the Court States in Barker: in the light be assessed should “Prejudice, course, the speedy the interests defendants which identified has to This Court protect. designed pretrial to prevent oppressive three interests: (i) and concern minimize anxiety incarceration; (ii) limit the possibility accused; (iii) be Of the most serious defense will impaired. these, adequately of a defendant inability because the last, of the entire the fairness his case skews prepare a delay, If during witnesses die or system. disappear if also prejudice is obvious. There is prejudice unable recall events accurately defense witnesses are not however, of the distant Loss past. memory, has been record because what reflected always Ct. can Id. at 92 S. be shown.” forgotten rarely factor, at 2193. to this important With respect in any degree instant record to establish the delays fails *7 He the charges. Jones’ to defend impaired ability a of as result states that two witnesses were unavailable estab- of the record the an examination delay, however, in These wit- lishes there is no merit this assertion. and the nesses were fact Commonwealth witnesses them to effort to locate every Commonwealth made unable to do so. as of but were its testify part case, the one such witness had testified Furthermore, for she (where at the hearing preliminary the defense Jones by counsel) was cross-examined to at trial. With testimony respect refused to use this was not delay the record shows the witness, the second there no causal con- of his hence was absence, the cause and his since unavailability between the delay nection not even at available, preliminary he was never after the arrest. was held right which hearing all of the relevant balancing After weighing a constitutional we rule Jones’ factors, not violated. trial was of error founded on the trial claim
Jones’ next on man jury voluntary failure to instruct court’s for No such a request as a verdict. slaughter possible no made and failure to so objection was charge no evidence was intro Moreover, was entered. charge side of the case which would warrant duced either a Under such cir manslaughter. verdict voluntary the failure to submit the possibility cumstances, not error. jury a verdict to the reversible Cf. Matthews, Commonwealth v. 446 Pa. A. 2d 510 65, 285 next the trial court erred in Jones claims directing to return not verdict on jury a the involun guilty indictment.5 At at tary manslaughter the fire was persuade jury accidentally tempted can of too set his act near by placing gasoline at the he and, “hot plate” most, guilty negli gence. Penal Code,
The Act June P. L. 24, 1939, §4703, Pennsylvania 18 P.S. relevant §703, part is convicted of man- provides: involuntary “Whoever of an slaughter, happening consequence act, unlawful or of a in an lawful act unlawful doing way, of a misdemeanor. . . .” Under guilty proof death resulted either from the involved perpetration of an or virtue of an arson accident. This issue was made clear to the the court jury by and left entirely resolve. Under the are jury we circumstances, not instruction persuaded complained-of was preju- charged jury In this connection the court as follows: *8 you say anything involuntary I did not “Now notice about man- slaughter. ease, you In all fairness to defendant in this if do arson, resulted because not believe that death commission of guilty involuntary manslaughter he cannot be then because if by happened way you ., you believe it of arson . do not . then way happened the he it said did and he is believe it free of blame circumstances.” those under
451 Pa. Chasten, 29, v. 443 dicial error. See A. 2d 305 275 cer- the trial court misstated
Jones next complains this Assuming the jury. tain testimony instructing conse- of sufficient was not is inadvertence correct, error or to impinge fundamental quence constitute no objection on a fair Jones’ More- instruction. entered to the now complained-of recol- the jury’s the court it was over, carefully charged lection of the that testimony governed. in its charge the court erred it
Next, complained and the death between the arson causal connection a reasonable beyond it stated: “If believe you when fire to that set maliciously doubt he willfully of arson. find guilty must the defendant dwelling, you arson, you If you find the defendant guilty awas doubt that there believe reasonable beyond the arson and the death causal connection between defendant Sean under the statute the then McKinnon, you However, of murder the first guilty degree. degree.” find him of murder the second may guilty [Emphasis supplied.] explain
It is true the court did not adequately causation, however, throughout of criminal concept the death was caused disputed it was not in- failed to call the fire. counsel Furthermore, or addi- attention, request to the court’s adequacy to the objection no Additionally, tional instructions. this circumstances, entered. Under charge error sustained. will not be assignment of the felony- attacks the Finally, application only rule in cases death is proximately murder where discussed carefully This issue is felony. related A. Pa. Yuknavich, in Commonwealth v. here. and elaboration is unnecessary 2d 290 (1972), of sentence affirmed. Judgment in No. is quashed. Appeal *9 452 by Pomeroy:
Concurring
Opinion
Mr.
Justice
I
in
join
concur in
decision of the
its
court,
for the
the court’s
with
opinion except
portion dealing
I
failure to instruct on
think
voluntary manslaughter.
error
if
it would
been
have
reversible
that,
requested,
on the
trial court not to
that
volun
part
charge
a verdict which was within
was
tary manslaughter
there
no
of the
even
was
power
jury
return,
though
a
See
evidence to
finding.
support
v.
446 Pa.
Dissenting
Opinion
by Mr. Justice Manderino
:
I dissent.
It
error
the trial court not
charge
jury
Invol-
involuntary manslaughter.
untary
defined as the
of another
manslaughter
killing
without malice and
but
the course
unintentionally,
of some unlawful act not
or
...
amounting
felony
some act lawful
negligently doing
itself. Common-
wealth v.
Pa.
The trial court also improperly deprived *10 of malice which fendant the issue jury trial of murder always is a element and must be necessary Yuknavich jury. decided See Commonwealth v. by A. Pa. 2d 290 (1972) (concurring opinion Justice Manderino ). Borough Case. Alexander Annexation West