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COMMONWEALTH v. AMATO (11/30/72)

decided: November 30, 1972.

COMMONWEALTH
v.
AMATO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1964, No. 686, in case of Commonwealth of Pennsylvania v. John Amato.

COUNSEL

Morris H. Wolff, for appellant.

Milton M. Stein, Assistant District Attorney, with him Judith Dean, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy concurs in the result. Concurring Opinion by Mr. Justice Manderino.

Author: Roberts

[ 449 Pa. Page 593]

On October 1, 1968, upon conclusion of a trial by jury, appellant John Amato was convicted of first degree murder and sentenced to life imprisonment. Post-trial motions were denied. Because we find no merit in the three issues appellant presses on this direct appeal, we affirm.

The first contention raised by appellant is that the trial court erred in instructing the jury that it could not return a verdict of voluntary manslaughter. Appellant, it should be noted, interposed no objection to this charge. Despite appellant's failure to object to the charge, he now argues that there was evidence introduced at trial which would support a finding of voluntary manslaughter. A review of the record, however, convincingly disproves appellant's assertion.

The murder for which appellant was charged was allegedly committed during the robbery of a grocery store. Appellant denied the commission of the robbery, and there was no eyewitness to the robbery or the murder. The deceased was the proprietor of the store. As the sole basis for a charge of voluntary manslaughter

[ 449 Pa. Page 594]

    appellant now relies on the existence of bruises on the deceased. Certainly this barren fact, unexplicated by any other evidence, does not support appellant's assertion that the deceased could have been killed during an altercation unrelated to the robbery. The trial court quite properly ruled that there was no factual basis for a charge of voluntary manslaughter.

Nor are we persuaded by appellant's argument that even in the absence of facts which would provide a basis for a charge of voluntary manslaughter a defendant has an absolute right to such a charge.*fn1 In the instant case no request for a charge of voluntary manslaughter was made. Regardless of whether a defendant has a right to such a charge when he requests it,*fn2 it seems clear that where, as here, no such request is made the court is not required to submit manslaughter to the jury. In the absence of a defendant's request it could be part of counsel's trial strategy to limit the jury's options to a verdict of murder or complete acquittal and it would, indeed, be error for the court to intrude on that deliberate trial strategy. See Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972).

In a very analogous situation the Third Circuit Court of Appeals reached ...


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