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COMMONWEALTH v. HECKATHORN (04/24/68)

decided: April 24, 1968.

COMMONWEALTH
v.
HECKATHORN, APPELLANT



Appeal from judgment of Court of Oyer and Terminer and General Jail Delivery of Mercer County, June T., 1966, No. 1, in case of Commonwealth of Pennsylvania v. Herbert Charles Heckathorn.

COUNSEL

Rocco L. Puntureri, with him M. L. McBride, Jr., for appellant.

Joseph J. Nelson, Assistant District Attorney, with him Edward M. Bell, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Justice O'Brien. Concurring Opinion by Mr. Justice Roberts.

Author: Bell

[ 429 Pa. Page 536]

On October 6, 1965, the body of Clair Heckathorn, a farmer and resident of Mercer County, was found shot to death in his home. Shortly thereafter, the defendant, aged 16 years, was arrested and committed to Mercer County jail. He submitted to questioning by the arresting officers for several two-hour periods, both on October 6th and 7th. On October 7, defendant was taken to his father's home and, with his father's permission, a search was conducted which uncovered a revolver later found to bear evidence of defendant's fingerprints.

On the morning of October 8, James Heckathorn, the brother of the defendant, "voluntarily" appeared at the Mercer County station house, and in the presence of police gave a statement confessing complicity of both himself and his brother in the homicide. Later that

[ 429 Pa. Page 537]

    morning, defendant was brought to the station house and his brother's statement was read to him. He admitted that his brother's statement was true, and then gave a statement in which he admitted that he shot the deceased while he and his brother were robbing him. Up to the time of this confession, no charges had been filed against defendant, although the arresting officers had been previously advised to do so by Judge Rodgers.

Thereafter, a bill of indictment which included the counts of murder, voluntary manslaughter and involuntary manslaughter was found against defendant. Defendant was tried and found guilty of murder in the first degree and sentenced to life imprisonment. He has appealed from the judgment of sentence.

I.

Charge of Court on Voluntary Manslaughter

Appellant contends that the trial Court committed error by failing to charge the jury on the law of voluntary and involuntary manslaughter. Defendant particularly objects to this portion of the charge: ". . . At the present time, the only duty before the jury is to determine whether the defendant is not guilty or guilty of murder in the second degree, or guilty of murder in the first degree. That is all that you are required to do at this time."

For over one hundred years it has been the well-settled rule in this Commonwealth that the jury has the right and power to decide the guilt or innocence of an accused and what crime or crimes, if any, he has been guilty of. Commonwealth v. Frazier, 411 Pa. 195, 202, 191 A.2d 369; Commonwealth v. Steele, 362 Pa. 427, 66 A.2d 825; Commonwealth v. Schmidt, 423 Pa. 432, 224 A.2d 625; Commonwealth v. Meas, 415 Pa. 41,

[ 429 Pa. Page 538202]

A.2d 74; Rhodes v. Commonwealth, 48 Pa. 396; Lane v. Commonwealth, 59 Pa. 371; see also, Act of June 24, 1939, P. L. 872, 18 P.S. ยง 4701. Relying thereon, defendant-appellant contends that the Court committed fatal and reversible error by its charge because it thereby took from the jury its power to find defendant guilty of only voluntary manslaughter.

Notwithstanding the aforesaid power of a jury to find a defendant charged with murder guilty of voluntary manslaughter only, the law is likewise well settled that a defendant is entitled to a charge on the law of manslaughter only when there is some evidence to support such a verdict. Commonwealth v. Pavillard, 421 Pa. 571, 220 A.2d 807; Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362; Commonwealth v. Flax, 331 Pa. 145, 200 Atl. 632; Commonwealth v. Yeager, 329 Pa. 81, 196 Atl. 827; Commonwealth v. Carroll, 326 Pa. 135, 191 Atl. 610; Commonwealth v. Miller, 313 Pa. 567, 569, 170 Atl. 128; Commonwealth v. Crossmire, 156 Pa. 304, 27 Atl. 40; Commonwealth v. Buccieri, 153 Pa. 535, 26 Atl. 228.

Thus, the important question for us in this appeal is whether there was any evidence which was sufficient to reduce this killing to voluntary manslaughter. In this appeal, defendant contends that he was innocent of any crime, and that at the most the killing amounted to voluntary manslaughter. These contentions, and particularly the latter one, are based upon the theory or contention that defendant spent the night in the home of his uncle and that his uncle was killed the following day as the result of an altercation during which defendant's gun went off. We note, incidentally, that defendant did not testify that his gun went off accidentally or unintentionally, or exactly how it went off. This contention was not presented in the lower Court. The only evidence cited to support it in this

[ 429 Pa. Page 539]

    appeal is the testimony of a witness for the Commonwealth that there was an indentation in the bed in the room of defendant's uncle roughly conforming to the shape of a body, which defendant's counsel now contends was the body shape of defendant. Defendant's confession, which he now seeks to repudiate because allegedly made under duress, was to the effect that he entered his uncle's house with the intention of stealing checks, and that in the process of obtaining them he had a short struggle with his uncle. He now seeks to combine the statement in his repudiated confession of his alleged struggle with his uncle with the aforesaid testimony about the impression of a body on the bed; obviously, there is no connection between these two bits of evidence. Furthermore, this evidence is clearly and without the slightest doubt insufficient to prove a crime of provocation or passion -- namely, voluntary manslaughter.

In Commonwealth v. Pavillard, 421 Pa., supra, this Court said (pages 575-576): "Defendant's second allegation of an error in the Court's charge raises a serious problem. The problem, concisely stated, is whether the trial Court, in a murder case, must charge on the issue of voluntary manslaughter where no proof of a killing under the influence of legal passion or provocation exists.

"In Commonwealth v. Nelson, 396 Pa. 359, 364, 152 A.2d 913, the Court, citing many authorities, thus defined voluntary manslaughter (page 364): 'In Commonwealth v. Donough, 377 Pa., supra, the Court quoting from Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540, said (page 52): "'"Voluntary manslaughter is a homicide intentionally committed under the influence of passion." Commonwealth v. Colandro, 231 Pa. 343, 350, 80 A. 571 (1911); Commonwealth v. Cargill, 357 Pa. 510, 513, 55 A.2d 373 (1947) . . .'"

[ 429 Pa. Page 540]

"'"In Commonwealth v. Colandro, 231 Pa. 343, 80 A. 571, the Court said (page 350): . . . '"The term 'passion' as here used includes both anger and terror provided they reach a degree of intensity sufficient to obscure temporarily the reason of the person affected:" 21 Am. & Eng. Ency. of Law (2d ed.) 173. "Passion, as used in a charge defining manslaughter . . . means any of the emotions of the mind known as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection"; 6 Words & Phrases, p. 5227.'"'

"In the instant case there was absolutely no evidence of legal passion or provocation*fn* such as to reduce the crime from murder to voluntary manslaughter. That being so, this Court has consistently and wisely held that the trial Judge is not required to charge the jury on the issue of voluntary manslaughter. Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362; Commonwealth v. Yeager, 329 Pa. 81, 196 Atl. 827; Commonwealth v. Miller, 313 Pa. 567, 569, 170 Atl. 128. A charge on a point or issue which is unsupported by any evidence is likely to confuse the jury and obstruct Justice.

"In Commonwealth v. LaRue, 381 Pa., supra, in a case very similar to the one at bar, the Court said (pages 121-122): 'Failure of the trial Judge to submit to the jury voluntary manslaughter as a possible verdict was not error. Where there is some evidence which would reduce the crime to voluntary manslaughter, defendant is entitled to have the jury instructed upon the subject: Commonwealth v. Flax, 331 Pa. 145, 200 A. 632. But where there is no evidence of manslaughter, it is proper for the court to refuse to submit to the jury the issue of manslaughter. In Commonwealth v. Yeager, 329 Pa. 81, 85, 196 A. 827, Justice

[ 429 Pa. Page 541]

(later Chief Justice) Maxey said: "It is well settled that on a trial for murder where there is no evidence which in the remotest degree points to the offense of manslaughter, the court commits no error in instructing the jury that a verdict of guilty of manslaughter would not be warranted. See Com. v. Carroll, 326 Pa. 135, 191 A. 610; ...


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