Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1967, No. 416, in case of Commonwealth of Pennsylvania v. William English.
James D. Crawford, Deputy District Attorney, with him Carl B. Feldbaum, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Rudolph S. Pallastrone, for appellee.
Bell, C. J. Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Eagen. Mr. Justice Jones, Mr. Justice O'Brien and Mr. Justice Pomeroy joins. Concurring Opinion by Mr. Justice Roberts.
On January 8, 1968, William English, defendant, appellee, was tried for murder of Roosevelt English (no relation to defendant), which took place on May 31, 1967. After four days of trial, the jury found the defendant guilty of voluntary manslaughter. Motions for a new trial and in arrest of judgment were filed and argued. On May 6, 1969, defendant's motion for a new trial was granted and the Commonwealth has taken the present appeal.
From the evidence produced at trial, it is apparent that as the defendant and the deceased (hereafter referred to as Roosevelt) emerged from a tavern they were arguing about a $10 debt which Roosevelt owed the defendant. The defendant hit Roosevelt in the face with his fist and knocked him down with such force that he struck his head on the pavement. While Roosevelt was unconscious, defendant went through his pockets and removed Roosevelt's wallet, which was empty. Eight days after being struck by defendant, Roosevelt died. The cause of death was cranial-cerebral injuries resulting from Roosevelt being punched, knocked down and striking his head on the pavement.
Throughout the trial, the Commonwealth maintained that the death occurred during the commission of a felony, i.e., attempted robbery, and therefore the killing was a felony murder and consequently murder in the first degree. Defendant contended and attempted to establish that there was no robbery, because he was merely making an effort to collect the $10 which Roosevelt owed him.
Defendant requested the trial Judge to charge the jury that in order to find a felony murder the jury must first find that the defendant intended to rob Roosevelt and that the homicide occurred while defendant was perpetrating a robbery. At various places throughout the charge, the trial Judge did instruct the jury in accord with defendant's requested point for charge, but the Court went on to say: "Even if the defendant believed that the decedent owed him money, if he tried to take the money by force or violence, it would still be robbery." Although defendant took no specific exception to this portion of the charge, and indeed no general exception to the charge, it effectively negated defendant's only defense, and if incorrect it would constitute basic and fundamental error. See Commonwealth v. Jennings, 442 Pa. 18, 24, 25, 274 A.2d 767. It is this portion of the charge which the trial Judge considered to be error, and this was his sole reason for granting defendant's motion for a new trial.
The law is well settled that the grant or denial of a motion for a new trial will not be reversed by this Court, unless the lower Court's Order was a clear abuse of discretion or an error of law which controlled the grant or denial of the new trial. Commonwealth v. Hartman, 383 Pa. 461, 119 A.2d 211. See also Commonwealth v. Green, 358 Pa. 192, 56 A.2d 95.
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