Appeal from judgment of Court of Common Pleas of Lancaster County, Sept. T., 1968, No. 424, in case of Commonwealth of Pennsylvania v. Roberto Santiago Laboy.
D. Patrick Zimmerman, with him Thomas E. Harting, for appellant.
Henry J. Rutherford, First Assistant District Attorney, and Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien.
On October 19, 1968, appellant, Roberto Santiago Laboy, brandishing a kitchen knife, chased his wife, Carmen Mercado, Laboy, out of the house and into the street, caught up to her and stabbed her in full view of some residents of the neighborhood. Mrs. Laboy died shortly thereafter of a punctured lung, and the appellant was arrested and charged with murder.
Represented by two court-appointed lawyers, appellant waived a jury trial and entered a plea of not guilty to the charge of murder. The appellant was tried, found guilty of murder in the second degree and sentenced to a term of ten to twenty years. The matter is on direct appeal from that judgment of sentence.
Appellant raises two issues in his appeal. He first argues that the trial court's statement of the law, made by way of explanation to the appellant, was analogous to a court's instructions to a jury and constituted basic and fundamental error because the court stated: "Now all murder under the law is presumed to be of the second degree (I am just citing the law now, first.) and the burden of proof is on the Commonwealth to show facts and circumstances constituting a wilful, deliberate and premeditated killing of a human being to raise it to murder of the first degree."
The court's explanation was correct. If the Commonwealth has proved beyond a reasonable doubt that the defendant has committed a murder, under the law that murder is presumed to be of the second degree. There is then a further burden of proof on the Commonwealth to show "facts and circumstances constituting a wilful, deliberate and premeditated killing of a human being to raise it to murder of the first degree."*fn1 There is no indication that the trial court did not understand this. In fact, there is every indication that it did.
Appellant also argues that he was not adequately and effectively represented by counsel. He emphasizes the decision of his counsel to waive a jury trial in return for the Commonwealth's stipulation that the degree of the crime would rise no higher than murder in the second degree, and he also contends that his counsel failed to argue diligently the elements of voluntary manslaughter. However, appellant's testimony on the stand was extremely sparse as to provocation, reasonableness of provocation, passion and the absence of a cooling-off period. Appellant did testify that his wife had told him that she didn't love him anymore, that
instead she loved his brother, Reuben, who was waiting for her to return to Puerto Rico. However, a number of other witnesses who witnessed the argument between appellant and his wife testified that while he accused her ...