Lead Opinion
OPINION OF THE COURT
In а 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
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 apartmеnt 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 twelvе 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 аppellant. 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, аnd, 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 thе 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inadequate; 4) error was committed in instructing the jury as to self-defеnse; 5) the robbery charge should have been withdrawn from the jury’s consideration; 6) inflammatory photographs were improperly admitted into evidence; and 7) the burglary verdict was not sustained by sufficient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 manslaughtеr.
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 seсond degree murder conviction, and to grant a new trial, because the jurors were not instructed upon the
At trial, defense counsel made no referenсe 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,
Judgment of sentence affirmed.
Notes
. June 28, 1977.
Concurrence Opinion
concurring.
I agree with the majority’s holding, as I beliеve that instructing the jury on the offense of involuntary manslaughter where, as here, that crime is not rationally made out by the evidence, perverts one of the foundations of our jurisprudence, the jury system.
Jury instructions on irrelevant lesser-included offenses invite the jury “to render verdicts based on law which has nothing to do with the case so that the jury may, contrary tо the facts, ‘dispense mercy’. Mercy is not the function of a jury — truth is.” Commonwealth v. McClendon,
Furthermore, we have no guarantee that juries will use unnecessary instructions on lesser-included offenses to dispense just mercy. The practiсal effect in some cases could be to promote convictions for the lesser grade of crime as a compromise verdict. Because the standards of appellate review reflect its inescapable remoteness, the injustice of such convictions may go unnoticed and, accordingly rules of trial procedure should be fashioned with an eye towards minimizing even the possibility of such an occurrence.
Finally, even if the jury diligently and conscientiously attempts to properly perfоrm their function, irrelevant instructions can only serve to confuse the jury and place an obstacle in the path of a true and correct verdict, particularly in homicide prosecutions, See, Commonwealth v. Comber,
Dissenting Opinion
dissenting.
For all the reasons set forth in Commonwealth v. Garcia,
“Offense defined. — A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.”
As the Reporter’s Comment tо Section 2501 points out, “[section 2501] defines the unified offense of ‘criminal homicide,’ which includes murder, voluntary manslaughter or involuntary manslaughter.” Toll, Pennsylvania Crimes Code Annotated 307 (1974). Thus I remain convinced that “[t]he state of mind which suffices to establish the commission of involuntary manslaughter constitutes a lesser kind of culpability than the malice which is an essentiаl element to murder.” Id.,
*193 “involuntary manslaughter, which is defined as a killing committed in a reckless or grossly negligent manner, [18 Pa. C.S.] § 2504, also may be committed when a killing is committed intentionally or knowingly. Under the Crimes Codе the categories of murder and voluntary manslaughter on the one hand, and involuntary manslaughter on the other, are not mutually exclusive categories. Because an intеntional or knowing killing also establishes a negligent killing, all criminal homicides necessarily include involun-. tary manslaughter as a constituent offense.”
Concurrence Opinion
concurring.
I enthusiastically join the majority opinion which fairly states the “disputed fact” test which I have been urging this Court to accept. This limitation upon the basic “reasonable basis test” avoids unwarranted intrusion upon the prosecutorial discretion. Commonwealth v. Garcia,