Commonwealth v. Polimeni
378 A.2d 1189
Pa.
1977
Check Treatment

*3 EAGEN, O’BRIEN, Before ROBERTS, POMEROY, NIX JJ. MANDERINO,

OPINION POMEROY, Justice.

Following trial by jury, appellant Michael Polimeni was found voluntary manslaughter in connection with *4 the shooting death of one Kenneth Patterson. Post-verdict denied, motions were and appellant was sentenced to a term of not less than nor three more than seven years imprison- In ment. this direct appeal, Polimeni raises two issues: the first, a to the challenge of the array petit jury the court of Common Pleas of second, Allegheny County; denial of a on requested charge involuntary manslaughter. We find the second claim to be meritorious and that new trial must be had. Accordingly, we do not reach merits of to the appellant’s of the challenge array petit jury.

I. that he was denied a fair trial contends because Appellant charge jury, requested, the trial declined judge The for involuntary manslaughter.1 point the offense of had not been appellant was refused because charge of that for and thus could not be convicted properly indicted action was in accord with the offense. The trial court’s Commonwealth See, e.g., case law in this Court. prevailing Hoffman, Common- v. (1970); 439 Pa. 266 A.2d 726 Reid, wealth v. Common- 432 Pa. 247 A.2d 783 (1968); Edwards, v. Com- 44, 244 wealth 431 Pa. A.2d 683 Soudani, monwealth v. 398 Pa. Comber, 343 (1953); A.2d Palermo, 81 A.2d 540 (1951); requested charge as follows: Pennsylvania; type “There is a fourth of homicide in the law of it charged Involuntary Manslaughter. Defendant is not is known as with this offense, you necessary it that is but is understand what it your Involuntary as an aid to evaluation of the facts of this case. Manslaughter I does not involve malice as have defined that term you, being for unintentional intentional malice an essential element of murder. It is an which is an killing, Voluntary Manslaughter unlike upon provoca- killing without malice based sufficient tion. “Involuntary Manslaughter negligence where criminal occurs person’s Involuntary Manslaugh- proximate cause of a death. by the commission of a lawful act in an unlawful ter occurs manner or reasonably by the commission of an act not calculated bodily harm, great but where the act is neverthe- to cause death or less an unlawful one. case, you “In if find that defendant did not act with the instant to kill and if malice and that he did not intend Kenneth Patterson you resisting defendant was an attack but used further find that proportion necessary excessive force—force out of to what was protect you himself—then could find defendant’s resistance doing was the of a lawful act in an unlawful manner. Defendant therefore, circumstances, guilty under those be of Involun- would tary charges Manslaughter indictment and not of the you.” before paragraph point charge this

We note that the last confusing voluntary defendant’s counsel was some of the elements of involuntary manslaughter. This error with those not, however, requested instruction taken as a does whole was not sufficient to mention of the mean that alert the court to the need to include charge. subject matter in its See Commonwealth Sisak, 259 A.2d *5 32 A.2d 767 Hardy, Commonwealth, 114 Pa. 6 A. 267 Hilands v. Commonwealth, (1863). 44 Pa. 135 But see and Walters v. Thomas, 170 A.2d compare 112 (1961).

We have held that where it recently appears support evidence would a verdict of prospective it is error for the trial court to refuse manslaughter, consolidate for trial an indictment for murder and voluntary and an indictment man- charging involuntary Moore, slaughter. Commonwealth 344 A.2d 850 (1975). Stock, See also Commonwealth v. Mr. Justice opinions by EAGEN of the in Moore

announcing judgments Court and Stock address, did not so, because it was not to do necessary us, i.c., issue whether, now before absent an indictment for on that offense involuntary manslaughter, charge is re- if quired On the properly requested. facts presented cases, those the failure to consolidate indictments was by itself a sufficient ground for new trials.2 We have conclud- ed, however, that the rationale of the Moore and Stock decisions is to the case at equally applicable bar. Moore,

The basis of the ruling set forth in the plurality opinion of Mr. Justice is that Eagen, “ . . . if a jury, credence to a defendant’s giving

version of an encounter could find that defendant guilty fundamental involuntary manslaughter, fairness dic- consolidation, tates the upon of that indictment request, with the murder and voluntary manslaughter indictments as possible verdicts.” 463 Pa. at 344 A.2d at 852-853.

The practical consequence, indeed, the of this purpose ruling was to permit a charge In the involuntary manslaughter. Moore, Court, In two members of this Mr. Justice Roberts and the writer, present separately concluded that a defendant is entitled to a charge involuntary manslaughter, requested, irrespective if offense, whether there has been an indictment for that at least where involuntary manslaughter the evidence is of such a nature that would verdict, i.e, supported by be a rational one the evidence. opinion, of the “failure so plurality acquaint

words *6 it from with full of operating knowledge prevents jury a fair having law and defendant from precludes relevant Id. hold, therefore, that of where in a trial a trial.”3 We present a indictment there is from whatever case on murder which would the fact-finder to re- permit evidence source manslaughter, a of a defendant is turn verdict a on the of entitled, to elements that upon charge request, offense.4 States, 205, 1993, 213, 412 U.S. 93 S.Ct. 36 In Keeble v. United following 844, (1973), Supreme Court made L.Ed.2d 850 comment: explicitly have never held that Due Process Clause we “[W]hile of right guarantees the of a defendant to Amendment Fifth offense, jury it is neverthe- instructed on a lesser included have the less . federal act in clear a construction of . that [the preclude raise question] such an instruction would difficult questions.” constitutional jurisdiction general that a in this and elsewhere is trial

4. The rule charge concerning included unless there need an offense court not basis” charged acquitting of “rational for the defendant the offense convicting him of the included offense. See Commonwealth v. and Jones, 569, Pavillard, (1973); A.2d v. 452 308 598 Pa. 571, (1966). Law Institute’s 421 Pa. 220 A.2d 807 See American 1.07(5) and comment thereto. Tentative Draft Model Penal Code § 42.43; States, United of Penal Code at Sansone v. No. 5 380 the Model 1009, 882, 349, 1004, 343, 13 L.Ed.2d 887-888 U.S. 85 S.Ct. States, 205, 208, (1965). v. 412 93 S.Ct. See Keeble United U.S. also 844, State, 1995, 1993, (1973); v. 74 847 McAllister 36 L.Ed.2d Johnson, 246, People (1976); 39 N.Y.2d N.W.2d 511 Wis.2d 364, 246 108, (1976); Dougherty, 348 564 State v. 384 N.Y.S.2d N.E.2d 1976). (Utah P.2d 550 175 infra, opinion, there part we conclude that was In II of this justifiably jury have in could found evidence case from which this murder, guilty appellant, of involun- not of that the tary manslaughter. while Consequently, is no for us now to there need rule, not under what circumstances a different decide whether and considerations, adopted dependent sylvania. opinion upon Moore, should in Penn- be on evidential express argued question we no has not been us and This put it As Mr. Justice Roberts in Commonwealth it. 317, 850, (1975), we “need not 463 344 A.2d 855-56 Pa. rationality requirement permissible should be a for decide whether verdict, case, involuntary manslaughter a verdict of would in this 328, (concurring A.2d have been 463 at 344 at 856 rational.” Roberts, J.). opinion of general rule is which To be with the the situation contrasted voluntary manslaughter, long Pennsylvania relative to obtains murder; recognized jurisdiction a lesser included offense of in this

437 could that the result we reach be today It is arguable the common-law concept through application derived involun- offenses5 and a determination lesser included charge regardless request on must on that offense the court any support such a verdict. See there is evidence to Com whether Jones, 563, 457 Pa. United States monwealth v. Johnson, denied, (3d 1974), 503 F.2d 339 Cir. cert. exrel. Matthews 43 430 Commonwealth v. See also Commonwealth v. 420 U.S. 95 S.Ct. L.Ed.2d Cain, A.2d 1234 Matthews, (1971) (dissenting opinion A.2d 510 writer, ROBERTS). joined by Mr. Justice The reasons for this this Pennsylvania having long been the law in that a are historical: it voluntary manslaughter “power” a verdict of on a has the to return any of the elements of indictment even absent evidence murder Hoffman, see, e.g., manslaughter, Commonwealth v. (1970), process of law was violated the failure to due A.2d contrast, Pennsylva request. charge In the law that offense on *7 power to return a verdict of has been that a had no nia until now involuntary manslaughter for that offense. The absent an indictment precedent manslaughter for what voluntary anachronism is thus no involuntary manslaughter. respect be with rule should origin. of lesser-included offenses is of common law 5. The doctrine 227, States, See, Kelly U.S.App.D.C. e.g., 370 F.2d v. United 125 (1966); denied, L.Ed.2d 1355 388 U.S. 87 S.Ct. 18 cert. Markis, 1965); (2d States v. 352 F.2d 860 Cir. United Commonwealth, (1923); Kellyon, 122 A. 166 Hunter v. 278 Gable, (1829); (1875); 7 S. & T. 433 F. 79 Pa. 503 ed., 1972, Wharton, (13th Law and Procedure C.E. Torcia Criminal 545; ed.) Wright, 2 Federal Practice and Procedure at § C.A. § Institute, 1.07(4) (1969); American Law Model Penal Code § 372 Draft, 1962). concept (Proposed cinctly common law is suc Official The 31(c) Rules of Proce stated in Rule of the Federal Criminal dure: may “(c) guilty of Less The defendant be found Conviction Offense. necessarily charged in included the offense or of an offense charged attempt offense or an offense of an necessarily to commit either the attempt is an offense.” included therein if the defining phrase “necessarily of federal case law For a discussion included” under this Practice 31.03 rule, Moore, see J. Wm. 8 Moore’s Federal (1972). § always concept offenses is not confined to The of “lesser included” included”, “necessarily by statutory are either definition those which case, although by particular facts in a the terms are or reason of the interchangeably. frequently are “lesser Offenses which includ- used category though “necessarily” in that are sometimes ed” even not “cognate For lesser included offenses.” discussions of the called application problems and involved in the included of- of definition see, alia, Koenig, Many-Headed Hydra concept, inter D. fenses Michigan A Herculean Task for the Lesser Included Offenses: Courts, (1975); College 41 Vol. 1975 Detroit of Law Review B. 438 a lesser voluntary manslaughter, like manslaughter,

tary has Voluntary manslaughter murder.6 included offense of else- authority in Pennsylvania,7 regarded been so long con- that, the proposition properly support where would is also a lesser included sidered, not, however, wheth- We need consider offense of murder.8 in should be changed, law rule Pennsylvania er the common in the case at bar holding our opinion for we are of Code, 18 Pennsylvania the new Crimes Pa.C.S. is required by Michigan, Vol. 1975 Detroit George, Included Lesser Offenses Barnett, (1975); College J. The Lesser-included Law Review 35 Practitioners, Analysis Day 5 Conn. A Present Offense Doctrine: Note, The Doctrine of Lesser Included Offenses L.Rev. Kansas, Note, Lesser Included Washburn L. Journal Equal Application to the Prosecution and Standards Offenses: Situations, 4 Toledo Law Review Included Offense in Lesser Defense 1.07(4), supra, provides that one note 6. The Model Penal Code § when included in another offense is by proof all the facts “(a) of the same or less than established it is charged; or the offense required the commission of to establish attempt to commit the offense (b) or solicitation it consists of an therein; or otherwise included charged an offense or to commit charged only respect that a less (c) from the offense it differs property injury person, or injury same risk of to the serious culpability suffices to establish its public a lesser kind of interest or commission.” Assembly, although adopting portions of We note that General Code, incorporate did not Penal into Crimes the Model Code not, however, 1.07(4) We do consider this a of the Model Code. disapprobation the doc- the Model formulation of mark of Code offenses. trine of lesser-included *8 563, (1974); Jones, See, 142 e.g., Pa. 319 A.2d Commonwealth v. 457 7. 201, (1973); Bailey, Pa. 299 A.2d 298 Com v. 450 Commonwealth 562, (1972); Kenney, 449 Pa. 297 A.2d 794 Common monwealth v. 356, Banks, (1971); 285 A.2d 506 Commonwealth v. 447 Pa. wealth Matthews, 65, (1971); v. 446 Commonwealth v. Flax, 348, (1970); Hoffman, v. A.2d 726 439 Pa. 266 Curcio, 145, (1938); A. 632 331 Pa. 380, 200 4, supra. (1907). See note 65 A. 792 State, Ind., (1976); People See, e.g., N.E.2d 569 McDonald v. 346 8. 1, (1973); Cal.Rptr. Heffington, Cal.App.3d 859 Hewitt v. 32 107 605, (1973); People Commonwealth, 893 see also 213 Va. 194 S.E.2d Homicide, 379, Jones, (1975); 40 236 N.W.2d 461 395 Mich. 802; Anno., Anno., 102 A.L.R. 1019 543 n.18 at Am.Jur.2d § Anno., 603 21 A.L.R. 27 A.L.R. 1097

439 101 et which effect at was in the time of the seq.,9 § the crimes involved. commission of here This case one being Code,10 of first under the it is impression necessary consider the structure of that legislation the definitions therein which we must be by guided. contained 25,

The Code in Crimes the first time in Chapter establishes an offense known Pennsylvania, as “criminal homicide”. A is of this crime person “if he intention- ally, recklessly causes the death of knowingly, negligently another being.” human 18 Pa.C.S. The 2501(a). Code § then states “[cjriminal homicide as mur- classified [is] der, manslaughter, or voluntary involuntary manslaughter.” Ibid. 2501(b). (Emphasis Murder is turn supplied.) § divided into three murder of categories: degree, the first murder second of the and murder degree, of third 2502.11 of degree. Ibid. Murder the first and of degree § the second under the Crimes Code corre- degree together law; to murder the first under spond degree prior new murder the first is of an degree intentional killing, while the new murder of degree the second is felony-murder. Murder of third degree comprised “all other kinds of murder” 1977-1978), 18 Pa.C.S. 2502(c) (Supp. thus § taking the the former murder in place the second degree, which the Code in the Penal described same words.12 The 1972, 6, 1972, 9. Act No. 334 of enacted December and effective six thereafter, 1974, by 26, months as Act amended of March P.L. 213, 4, (Supp. 1977-78). No. 46 18 Pa.C.S. § 2502 § Moore, 317, 10. (1975), Cf. Commonwealth v. 344 850 A.2d supra, Stock, 547, and Commonwealth v. A.2d 654 (1975), supra, Code, both of which arose under the Penal ofAct June 24, 1939, 872, 701, amended, Pa.C.S.A.App. P.L. as § § predecessor statute the Crimes Code. degree This further subdivision of murder so as to create a third by that offense added to Code Crimes Act of March 1977-78). P.L. No. 46 (Supp. § § Pa.C.S. 24, 1939, amended, 12. Act of June P.L. 872 18 Pa.C.S.A. App. § 4701. definition of this classification of criminal homi- Code, therefore, cide under the like Crimes definition murder degree Code, in the second under the former Penal is to be derived Drum, from the common law. See Commonwealth v. 58 Pa. 9 *9 440 of criminal homicide are voluntary two

remaining species also are manslaughter. They and terms as in Code in the same basic defined in Crimes 2503, 2504. law.13 18 Pa.C.S. prior §§ of 25 of the Chapter We think that the structure such the above cited sections is appear Crimes Code in which offense, that of criminal homicide major as to create one homicide, homicide, namely, the several of types and voluntary the three named and degrees murder of of any constituent subsidiary are involuntary manslaughter offense. All of single major grades offenses within thus have been made lesser included of unlawful killing criminal fenses of the overall crime of homicide.14 the classifications are a function largely differences between clear the state of mind of the This becomes perpetrator. culpability purposes when one examines the ranking Palmer, 282, (1868). 292 v. 448 Pa. A.2d See also Commonwealth 210, (1972); Tyrrell, v. 405 174 A.2d 852 921 (1961); Commonwealth Pa. (1844). Daley, 2 361 “Malice” is an v. Clark Commonwealth variety v. Commonwealth v. v. element of this of homicide. Commonwealth essential 610, 17, 22-23, (1975); Boyd, Buzard, A.2d 613 334 76 A.2d 394 365 (1928). McLaughlin, also 142 A. 213 See Common Hornberger, 441 Pa. Common wealth Malone, Mr. Justice 47 A.2d wealth Drum, supra, description Agnew’s malice in is criminal statement of that element of homicide: still the classic ill-will, only comprehends particular not a but “Malice . . . every disposition, hardness of case where there is wickedness of heart, consequences, regardless cruelty, and a mind recklessness of added). duty (emphasis . .” 58 Pa. at 15. of social . Code, prior provision of June 13. in the Penal Act Cf. 872, 703, culpability purposes, Pa.C.S.A.App. 4703. For P.L. § voluntary manslaughter felony grades the new Code degree of which a sentence to a term of second imprisonment tary manslaughter for conviction years may imposed; be involun- of not more than ten degree, is classed as a misdemeanor of first years imprisonment. carrying sentence of five See a maximum 106. Pa.C.S. § ground aiding Causing for conviction of suicide also not, 2505. Such conduct is how- criminal homicide. 18 Pa.C.S. § ever, See 18 be a “classification” of criminal homicide. stated to 2501(b). Pa.C.S. § *10 the several of criminal homicide.15 categories Premeditated, in intentional and the course of killing killing committing a continue to be as the most felony equated culpable highly of and classes criminal homicide.16 A felonious malicious a of killing (murder without intent to take life specific formerly third second is degree, degree) placed by Code degree in the next of a highest culpability, of the first felony 2502(c). degree. 18 Pa.C.S. Next seriousness ais. § which, killing although intentional, is committed when the actor is under the influence of a sudden and intense passion is resulting provocation acting from serious or in the unrea- sonable belief that would justify circumstances a killing. homicide, This subdivision of criminal voluntary manslaugh- ter, is a punishable as of the felony degree. second Pa.C.S. 2503. with Involuntary manslaughter, which we § concerned, are here is committed when the of person death a is a caused as direct result either aof lawful act or of an unlawful act done in a “reckless or man- grossly negligent ner,” 18 Pa.C.S. 2504.17 In the of scale such culpability, § a is killing a misdemeanor of the first Id. degree. 2504(b). § punishments 15. which the Crimes Code attaches the several classifications of crimes are set forth in 106 of the Code. § grouped together 16. Both are under the rubric of “murder of the first degree” category culpability e., purposes, as the first crime i. permissible applicable sentences different classes criminal of- (Supp. 1977-78). fenses. 18 Pa.C.S. 106 “Recklessly” 302(b)(3): defined 18 Pa.C.S. § person recklessly respect “A acts with to a material element of consciously disregards an when offense he a and un- substantial justifiable risk that material will element exists or result from that, degree his risk conduct. The must be of such a and nature considering the nature and intent of the and actor’s conduct him, disregard gross circumstances known to its a involves devia- person tion from the standard conduct a that reasonable would observe in the actor’s situation.” “Negligently” 302(b)(4): is defined in 18 Pa.C.S. § person negligently respect “A acts with to a material element of unjustifia- when an offense he should be aware of a substantial and ble risk that the material element exists will result from his degree conduct. The risk must such be of a nature and that the it, perceive considering actor’s failure to his the nature and intent of him, gross conduct the circumstances known to a involves person deviation from the standard of care reasonable would observe in the actor’s situation.” of the third man degree, involuntary

Like murder un intentional killing. is an See Commonwealth slaughter Jones, What is more for our is the fact that under the present important purposes Crimes Code it is a which a state of mind killing requires is in effect on the scale simply gradation ascending which malice. The state of mind culpability culminating which characterizes is not mali involuntary manslaughter cious; it is referred to as “criminal and is negligence” acts, unlawful, whether lawful or done in a evidenced by manner as those terms are negligent” “reckless or grossly 2504; defined. see also n. supra; See Pa.C.S. § *11 Jones, 569, 578-79, v. 308 A.2d 598 Commonwealth Aurick, 282, 288-89, In 19 (1973). 920, (1941), A.2d 923 this Court stated that to constitute “ must be such involuntary manslaughter negligence ‘[t]he what an from would be the conduct of departure ordinary evi prudent or careful man under the circumstances as to dence a life conse of human or an indifference to disregard ” Root, 571, quences.’ See also Commonwealth v. 403 LaPorta, 170 (1961); A.2d 310 Commonwealth v. 218 Pa.Su 1, Clowser, 272 A.2d 516 212 per. (1970); Commonwealth 208, 239 A.2d 870 Commonwealth v. Har Pa.Super. tle, Pa.Super. hold, summarize, the legisla

'We thus to that because ture has classified manslaugh both murder and involuntary homicide, ter as subdivisions of the offense of criminal major a defendant who has been with murder is entitled charged have the the elements of to instructed on request jury at least where evidence is manslaughter involuntary at his trial on which a verdict of that less serious presented offense could be based.18 rationally types manslaughter

The Crimes Code definitions of the two of are substantially prior the same as under law. See Moore, supra, (concurring at n. 344 A.2d at n. 15 ROBERTS, J.). opinion of judge may sponte 18. Whether the trial so instruct sua is not States, compare now before us. See and Walker v. United Herron, U.S.App.D.C. 418 F.2d 1116 State v. 349 S.W.2d

II. It remains to determine whether from evidence in this case a conclude that Michael jury might rationally manslaughter. of As noted guilty involuntary Polimeni above, the Crimes definition of involuntary manslaugh Code ter is of our law: substantially declaratory previous

“A person when a direct result of of a lawful action in doing or negligent manner, reckless or the of a grossly doing manner, lawful act in a reckless grossly negligent he causes the death another person.” Pa.C.S.A. 2504(a) (1973). § 302(b)(3) also 18 and 302(b)(4) (1973),

See Pa.C.S.A. supra n. where the Code defines reckless negligent con- duct. the evidence most favorable Viewing light to we then appellant19 must determine whether the jury find could defendant’s actions to have been unintentional “reckless or grossly negligent” but within meaning of the Code provisions. evidence at trial showed the following sequence events:20 August 22, 1973,

On evening Polimeni, Michael invited one appellant, Nicky and one Dellaquilla William brother, Grande the house shared appellant with his Peter Polimeni. The for the purpose was to proposed meeting discuss some and a missing bottle pills pill belonging *12 Polimeni which he believed had stolen. When Dellaquilla and arrived Dellaquilla Grande at home at appellant’s about m., p. 11:30 there with were them four other men: David Dowling, John Frederick Dyer, Kostanich and Kenneth Pat- others, terson. at the Surprised seeing went appellant into alone, bedroom his removed a loaded .38 caliber from pistol the safe there and the in his trouser placed gun back pocket. State, (Mo.1961); (Okl.Cr.App. Tarter 359 P.2d 1961); Nodine, State v. 198 Or. 259 P.2d 1056 Moore, supra, 19. Commonwealth v. 463 Pa. at 321 344 A.2d at primarily summary 20. This account is of Michael Polimeni’s own testimony. Peter, others, his brother including the thereupon joined He ensued between A discussion room. in the downstairs game with pills, concerning missing and Dellaquilla himself notify police to threatening at one point the appellant Kostanich At that point, alleged thievery. Dellaquilla’s theft an auto the discussion towards intervened and turned and a car one Churchill involving Dellaquilla, and crash friend of Polimeni’s. to a belonging re- in the chest and Kostanich Appellant began poke then that his home. It was that he from depart quest leave, came had been about to Patterson, who apparently the air room, his hand into right back into the raised game re- hand of Polimeni announced, “This is the God.” and Patterson then “Well, f-u- and the hand God.” sponded, him around the neck and Polimeni, grabbed advanced on God, it is him, “This is the hand began choking saying, joined At Peter Polimeni point to kill this going you.” his brother’s Patterson’s hands from scuffle and removed Polimeni, Michael who at neck, again grabbed but Patterson Patterson, said to from his and pocket then removed gun “Shoot, f’r,” mother house or I’ll shoot.” “Get out of my if he and as to feel faint Beginning Patterson. responded from Patterson out,” away pushed “black might appellant his gun. to fire hand, and with the other began him with one three the five shot Patterson pistol, striking He emptied him mortally.21 times and wounding direct examination: as follows on 21. Michael Polimeni testified - kind right me so I side of “. . I kind of felt motion from the I grabbed again that’s when me and then Patterson turned and said, my or I’ll- pulled gun out of house out. I ‘Get went back and f’r,’ said, ‘Shoot, you,’ I kind of started mother and shoot and he trying push blacking fainting And then I was and —started out. shooting the same time. him off me and I was at N.T. 293-4. “My getting head heavier and heavier. was kind of [******] swelling. I just only thing kept shooting I knew, my gun.” head you “Q. aiming gun Were at all? shooting it, just pushing aiming A. I don’t know if I was I was gun.” N.T. 295. *13 From this account, three defense be arguments may (1) drawn: Polimeni killed in justifiably Patterson self-de- fense, crime; and was of (2) no Polimeni’s fear his of life was not reasonable, or he used force in excessive coun- tering him, Patterson’s attack on in either of which events appellant’s crime would be (3) voluntary manslaughter; Polimeni’s actions were reckless that he disre- consciously garded substantial and unjustifiable risk that death or serious bodily harm might result to Patterson from Polime- ni’s his pulling and gun firing, in which appellant case would be guilty of involuntary manslaughter. 18 Pa.C.S.A. “Q. you you Can describe to us grabbed the sensation when he felt

you? just my getting A. I felt like head was heavier and heavier and I was like, getting light just getting headed and I was scared and start [sic] shooting.” N.T. 299. just pulled A. know what “Q. Consciously? Did you it out kind of in the part consciously point of his [******] ****** I kind body I was pulled direction the aiming it weapon out, our at or aimed—didn’t at Patterson? bodies anything.” were, really so I didn’t N.T. 300. aim, “Q. your itWas intention to kill him? A. No sir. Q. your What intention? him A. Get off N.T. 300 01. me.” part On Polimeni cross-examination testified as follows: “Q. elapsed How much time between the first and second shots? what, A. I shot I After shot the first didn’t know if I him or hit I and him, trying push was still to I was hesitant on the second shot what, I if I hit him or pretty because didn’t know but he still seemed know, strong getting, you out, going I like just and was still like and I trigger pressing after started that. the wrecking worry from A. I wasn’t actually Patterson Q. A. Yes started “Q. You meeting Were guess prosecution about aiming sir.” N.T. 340. grabbed appellant knew above of a car had been scream, you aiming so, in Polimeni’s house was to it, for a you I God pulled [******] belonging version pulled were felled. specific part will take following particulars: at it out and he was in aiming Kenneth Patterson? and said of what gun care at him? one and fired occurred that Klingensmith; only body it”; “Take it discuss five nonetheless, anything. general vicinity. alleged purpose times, easy man, evening Patterson never stealing twice after appellant differed don’t I *14 alternative is The third 302(b)(3). 18 Pa.C.S. 2504(a); § that he knew admission sure, weakened, by appellant’s to be victim, but this came at the the aiming gun he was ver- conflicting had given after appellant cross-examination it”; . didn’t “. . aiming if I was know (“I sions don’t direction out kind of aim, gun] just pulled really [the his I body what part know were, so I didn’t our bodies and the ambiguity Despite at or anything.”) was aiming have con- could jury statements of these ambivalence of reck- was in the category conduct that Polimeni’s cluded inten- rather than of manslaughter) (involuntary lessness result- sudden and intense passion either under killing tional in the unrea- Patterson or by provocation from serious ing (voluntary be justified that the would killing sonable belief manslaughter). of the conflicting interpretations of these

The resolution course, has which, authority facts is for jury, of a witness’ Com- all, testimony. of or none part believe 305 A.2d 14 Marlin, v. monwealth 295 A.2d 337 Oates, Petrisko, state- conclusion, think that Mr. Justice EAGEN’s In we Pa. at Stock, supra, ment in Commonwealth Court) the decision of announcing A.2d at 657 (opinion to the case at bar: germane equally would have sup- “We believe the evidence presented The jury, involuntary manslaughter. a verdict of ported have could determined crediting testimony Stock’s fatal was unintentional and acciden- wounding of Rhodes Furthermore, tal. its and knowledge the jury, applying conduct could have concluded that Stock’s experience, and crimi- which while unlawful killing, contributed to man- involuntary within the nally negligent definition the level of was not as to reach slaughter, negligent so a murder convic- recklessness and wantonness for required tion. viewed Stock’s Therefore, since the could have man- conduct as within the ambit of coming . . it was for trial court . slaughter, error [not] as a present involuntary manslaughter ver- possible omitted) dict.” (Footnotes of sentence is reversed case

Judgment remanded new trial.

JONES, J., former C. did not participate decision this case.

ROBERTS, J., which opinion filed concurring J., O’BRIEN, joins.

MANDERINO, J., a opinion. filed concurring NIX, J., dissenting filed a opinion.

ROBERTS, Justice, concurring. Garcia, in

For the reasons stated (1976) opinion), A.2d 1199 I believe (plurality upon charge that a defendant is entitled to a on request in for criminal manslaughter every prosecution involuntary Code, the homicide under Crimes 18 Pa.C.S.A. 2501 (1973). I agree appellant therefore with the that is entitled majority to a new trial.

O’BRIEN, J., opinion. in this joins concurring MANDERINO, Justice, concurring.

I with the agree that is to a majority appellant entitled new trial because one accused of criminal enti- homicide is tled to an instruction on if re- involuntary manslaughter, quested, whether or not there is “rational basis” in the any mind of the trial for such a judge verdict.

To to refuse hold that it is error not to on instruct even in involuntary manslaughter, a case where is there no “rational basis” which the upon could return jury such a verdict the sets for the stage same issue which confronted this Court previously concerning voluntary manslaughter. problem the voluntary manslaughter began area when a jury returned a verdict of voluntary manslaughter even there had been though no as to charge voluntary with the issue We were then confronted

manslaughter. (for verdict manslaughter to the accept voluntary whether or the accept not been a refuse to charge) which there had voluntary verdict as valid. If the voluntary manslaughter Court, had accepted, verdict not been manslaughter had a acquittal have to enter verdict of necessity, would man- voluntary verdict of overruling jury’s man- voluntary refused to ignore This Court slaughter. it circumstances, held that under such verdict slaughter to such a jury of the return authority was within on not been instructed verdict, had though jury even voluntary manslaughter. involuntary when return verdict of jurors

What happens charged have not though even been manslaughter, they that they their wisdom believe crime, because in the This Court involved case? degree guilt lesser decide, did the voluntary then as it once will have area, man- accept whether to valid, not though verdict even slaughter crime, jury’s or refuse to accept on the charged a verdict of acquittal. verdict and enter in a case involves The proper justice given frequently justices I do not understand why judges close questions. *16 rather than can best resolve juries, they, assume that should eliminate artificial limitations close We questions. The be on invol- should jury charged a deliberations. jury’s all If in cases of criminal homicide. untary manslaughter ais involuntary manslaughter its wisdom a decides that jury verdict. not disturb that verdict, judge a should proper fear will return juries irrationally There is reason to no verdict in cases where there manslaughter an involuntary verdict. jury may, kind for such a no basis of any however, disagree superior reasoning compassion, out of with the verdict of judge bring trial no in the though even there is “rational basis” court’s mind for such verdict. cases,

In I the wisdom twelve prefer persons such close justice The ultimate of a judge. given to that a single of a than of a the prerogative is more properly case judge. Justice,

NIX, dissenting. dissent in for the reasons set forth Com- my I dissent Oct. (filed 449, 378 A.2d Garcia, 474 monwealth v. 7, 1977). Pennsylvania

COMMONWEALTH GARCIA, Appellant. Bennie Pennsylvania. Supreme Court Argued Nov. 1976.

Decided Oct.