*1 prelimi- of the lower court reversed, The action rein- complaint and the dismissed are objections nary the lower court remanded to and the record stated, opinion. in accordance with proceedings further participate did Mr. Justice Musmanno case. decision Appellant. v. Simon, Before April
Argued 1968. C. Mus- Bell, J., O’Brien Cohen, Eagen, Roberts, Jones, manno, JJ.
reargument re- 1968. December 30, fused
Malcolm W. for Berkowitz, appellant. D.
James Crawford, Assistant District Attorney, with him Michael J. Rotko, Assistant District Attor- Richard ney, A. Sprague, First Assistant District At- Arlen torney, Specter, District for Com- Attorney, monwealth, appellee. Per
Order Curiam, November 27, 1968: The Court being evenly divided, judgment affirmed.
Mr. Justice Musmanno did not participate decision of this case.
Opinion Support Mr. Justice of Roberts, the Order: an from appeal a of 1962 conviction first in
degree murder which fixed the at jury penalty life imprisonment. appellant assigns rea- several sons this Court should deter- why reverse the jury’s mination and grant her trial. new
The first two involve claimed errors in the court’s to the that charge jury. contends Initially find- the court instructed the that a incorrectly the part to kill on of the ing intent defendant would It preclude a verdict voluntary manslaughter. is, instructions judge gave correct twice fact, this assertion. First: “Voluntary approximate in the unlawful of an- killing consists manslaughter . . malice . and that means direct without other without “If hear in mind that .”; kill. . . later: you intent accompanied by legal malice, manslaughter never . . intent to kill. .” direct However, is, by if studied in replies Commonwealth up any language entirety, cleared its additional misconception. Specifically, relies part killing charge: must, on “The act this very voluntary. name what the he That is course, manslaughter implies, voluntary of the crime because an intentional act.” involves charge read in While it is our conclusion that the require entirety con its reversal does model not a as the instructions were viction, delivered, aspect clarity is well of the case. The law that a conviction settled this state manslaughter entirely may in consistent with a defendant tent to kill. the situation where First, danger he is in acts under an unreasonable fear specific bodily intent serious there be a harm, *3 may yet the offense constitute kill, manslaughter. Pa. 575, v. 407 Jordan, Commonwealth (1962) A. 2d ; 181 316 585, 310, (1957). Thompson, A. 214 2d 207, 133 382, 394, where instance The result occurs second same specific a intent have formed the defendant passion product or of blind which intent was kill, rage. Commonwealth v. Walters, a trial court should A. Therefore, 2d given perfectly jury under cir clear make that, presence to kill of an intent should cumstances, voluntary manslaughter. preclude of a verdict charge of other our review this sat- hand, On the portions charge of on this record the isfies us that justify complained of not of such a nature were grant The situation which new trial. charge by could the trial court’s created claims was by calling the attention been remedied have request appropriate for clarifica- court with point any nor done; tion. This was exception lodged by general charge The submitted. never conclusion at the counsel proper preserve vehicle to appeal for consideration on alleged charge, timely objection errors when a or request could resulted have a correction of the trial inadequate court’s unclear or instruction. See Pa. E. Crim. P. 1119. alleged
The second error is the court’s failure to they instruct the if found the defendant acted under an danger unreasonable belief that she inwas bodily they serious guilty should find harm, her voluntary manslaughter. This instruction would have complement actually given been a to the one discuss- ing necessary the reasonable belief to establish self yield guilty defense and a not verdict. in- The court, portion did fail to deed, discuss this item in the charge dealing with the defense of self defense; charged voluntary manslaugh- but when the court it included the unreasonable ter, appellant belief defense which presented.
now contends was never charged: court an intentional
“[T]o reduce blow or wound which voluntary manslaughter, causes death to there must be provocation either sufficient cause for or a state of passion rage or without time to cool . . . The word passion things anger . . . includes such as or terror. . . . any Passion means emotions such mind, rage, rendering as sudden resentment, terror, incapable mind of cool reflection.” Certainly repetition the court of emo- these *4 especially comprehends tional states, the situa- terror, tion where the defendant had an fear. unreasonable jury If the had believed that had they reasonably unreasonable could fear, have been expected appellant guilty to find of man- slaughter charge. appel- under this if addition, explanation lant’s counsel believed that this of volun- manslaughter tary sufficiently explicit, not was we appropriate time to reiterate seek clarification 390 in the court jury have been when was still
would to further amend his position room and the judge not sit at may silently by instructions. Counsel incorrect. charge of a which he thinks is conclusion justice requires administration proper “[A] had not on errors which counsel granted new be to correct.” ample Segriff opportunity Johnston, 402 Pa. 166 A. 2d see 113, (1960); 499 109, 496, Lobalzo v. 422 A. 2d 636 Pa. Varoli, 5, 7, (1966) opinion). (concurring with the new reasoning entirely consistent Buie Criminal Procedure 1119 provides: “(b) which portions No nor therefrom charge omissions made assigned specific be as unless are error, objections Al thereto . .”* retires deliberate. . before though rule was not effect at the time appellant’s reflected the case law trial, existing at the time of its Commonwealth v. Rich adoption. 392 Pa. 2d Common ardson, (1958); A. wealth v. A. 2d 694 Donough, two dissenting opinion these first argues in a reversal arguments by appellant should result conviction. It states the rule be general not this Court on a raised ground will reverse excep- in the court no point below and tion taken “there is basic unless by appellant, or justice fundamental error which affects the merits both incorrect and un- the case.” This standard is standard must be workable. First, relevant it be but how can easily how severe was error, grant to each de- attempting corrected. We are This must possible. fendant fair a trial as as error-free trial. There- of an short necessity something * 227(b) ; R. P. 51. Both of these P. Fed. C. R. C. See limiting provisions the effectiveness of the contain similar rules objections requiring specific exception general jury. presentation prior case to filed to be *5 fore we must insist that counsel object all those events which counsel alleges be error so that trial court is afforded an opportunity remedy alleged deficiencies which the trial court determines are valid. this Court Then, will for (1) those reverse errors which were so severe that to cor- any attempt rect them could dispel the earlier and (2) taint those objections which the trial Court overruled and which we find meritorious. in this will the Only way administration of criminal justice require reversals and retrials those cases where it es- absolutely sential. the use of Further, prevent will inquiry for counsel defendant from error passively allowing to creep into the proceedings so that he case fails an for acquittal obtain his he will have es- client, the, a sufficient record tablished for purpose of ob- taining a retrial.
Second, proposed standard dissent simply unworkable. This can be very demonstrated applied dissent has their easily. standard to three different before situations this Court involving “fail ure to when object” problems; total lack examined, parameters employing their test ap becomes parent. instant First, “fundamental case, an error” is ambiguous charge; the dissent believes sufficiently this error grievous to justify reversal no objection. even there was Next is Com though A. 2d Williams, monwealth another case incorrect (1968), involving charge. judge the trial an error Williams committed when . . “. the burden he told the Common his to establish commission of guilt wealth If you their burden. feel This is their crime. do based on substantially that, does testimony then you are not re witnesses, credibility in a convictionThis bring remark quired fundamental” to be “basic and under held also re- and therefore the dissent espoused by the test failure trial counsel’s despite in a reversal sulted *6 object. v. 432 Scoleri,
The third case is the In case A. 2d 295 248 571, to guaranteed he denied the rights claimed that was 231 426 Commonwealth v. Pa. 192, him under Vivian, that it in this Court held was A. 2d 301 (1967), of counsel the assistance right denial of defendant’s trial attorney during with his his prohibit speaking cross- being defendant was noon recess while the occurred in thing the same Essentially examined. pres the defendant court instructed the Seoleri; coun he not to talk to trial that was jury ence Thus there were two serious the recess. during sel to counsel was (1) right in Seoleri: defendant’s errors been prejudiced have (2) jury and abridged suspicion ill-founded the defendant against al trial were not and counsel because the defendant But something was amiss. communicate, lowed error Seoleri decides opinion majority Court it was before the because not properly In states majority appeal. Seoleri, until raised and preju not “of such substance error was deprivation and in an unfair dice as to result more course nothing standard is justice.” and fundamental of the basic reworking than a majority. and the Williams the Simon dissent test the dis more. view any my help it us does Nor the am position its justify fails utterly sent and charges incorrect Simon perhaps, biguous or, or of basic more any are Williams fundamental than the denial coun or prejudice substcmce greater made to the Court remark prejudicial sel Seoleri error more If anything, in Seoleri. of perhaps denial represented since shocking Commonwealth ex rel. right. fundamental the most Cf.
393
Firmstone v.
that, there at least a chance the trial ly objection, have corrected complained would the now judge If trial judge had, error. the trial would have been if then it have he had would been time not, enough fair; issues on the reviewed these merits. have
Appellant’s next
assignment
the course
during
comments
prosecuting attorney’s
nature as to warrant
prejudicial
trial
of such a
were
is clear
new trial.
the law
Pennsylvania,
offend
alleged
is not
new
warranted unless
prejudice
effect
be to
ing language’s unavoidable
would
hostility
in their
fixed bias and
forming
minds
jury,
weigh
could not
they
toward the
so that
defendant,
v.
and render a true verdict. Commonwealth
evidence
Common
(1936);
322 Pa.
There
tends to show the
defendant which
by
acts
tain
crime is inad-
and unrelated
of another
commission
evidence.
missible
Commonwealth 380 Pa.
Burdell,
Appellant’s argument involves the cross-ex- amination one of her character Josephine witnesses, Bond. This character witness was “You asked: are aren’t that our aware, Juvenile Court you, noted you are an irresponsible a having questionable person, home and a poor reputation neighborhood?” prose- statement was denied and in rebuttal cution called Frances a officer of Shochet, probation the county court who concerning custody testified a proceeding reputa- and her involving poor witness tion. It it true would have been improper impeach offer this testimony credibility the witness; dispute could not custody possibly in- amount conviction of a or misdemeanor felony crimen falsi. Commonwealth v. volving Jones, 2d it (1939). 5 A. has been 321, However, long proper law this Commonwealth that prove examine character his “stand- witness repute ard of what constitutes unsound.” good Commonwealth v. 191 Atl. Becker, “The admission of testimony deceptive is of doubtful value and often good reputation *9 to it the acid test cross- applied there is not where which the . . . the standard prove by examination Id. Since this was reputation.” measures witness prosecution’s line of questioning, for the purpose re- does not constitute complaint certainly appellant’s error. versible be-
I disturbing judgment find no basis affirmed. Judgment low. by Opinion
Dissenting O’Brien: Mr. Justice “opinion support his Justice Roberts permit a volun- order of the court” would preju- highly in this case which is tary manslaughter dicial the court appellant. Twice instructed is not manslaughter that a voluntary verdict to kill. First: there is a direct intent proper when kill- in the unlawful consists “Voluntary manslaughter . . . and that means of another without malice ing later: “If you intent to kill. . . without direct accompanied never manslaughter bear mind that . .”. a direct intent to kill. by malice, is, by legal points himself out these clearly Justice Roberts he refuses erroneous. However, instructions were from his opinion error, although for this reverse he bases grounds clear on which of two exactly he the view that Ms result. Either or he be- portions charge, other cured excep- a specific failure to take that appellant’s lieves our re- complained precludes the portions tion to I with neither conclusion. can view, agree or both. act of killing must, “The charged, court also name That is what voluntary. very course, manslaughter because implies, of the crime act.” cures hardly intentional involves intent that a finding effect faulty language of voluntary manslaughter. a verdict precludes to kill *10 the Informing voluntary manslaughter its by an requires nature intentional no in- act, by means forms them manslaughter consistent an intent to kill. with The act itself can well in- tentional without intent to kill any present. being of view the fact in evidence this case only supports the verdict of barely first I degree murder, conclude that the erroneous were definite- instructions appellant. ly prejudicial precluded
Nor are we
from
reversing
ground
special
because no
merely
exception was taken. Re
of what effect Pa. R.
gardless
Crim. P.
ef
1119(b),
fective
have on
August 1, 1968, may
future appeals,1
it
inapplicable
to the
clearly
present case. To state,
as Justice Roberts
the Rule reflects
does,
case
at the
of
existing
law
time
its
is simply
adoption,
of
ignore
consistent view this Court. That view
was
summarized
very recently
c. . . process him due concept justice,” and, hence, denies Fourteenth Amendment’.” by guaranteed law quote]. omitted throughout (Emphasis [Citations cited Roberts None the cases Justice original). that where there inconsistent with this view Court will charge, fundamental where fundamen- permit to stand. Surely verdict de- tal error in a a verdict first charge results imprisonment, murder and a life gree sentence af- reason to glorifies procedure all bounds beyond firm such verdict.
I dissent. Mr. Justice Cohen this dissent. joins Resinger, Appellant. Commonwealth v.