Appeal from judgment of Court of Common Pleas of Chester County, May T., 1969, No. 450, in case of Commonwealth of Pennsylvania v. Robert W. Fell.
John R. Merrick, Public Defender, for appellant.
F. Ned Hand, Assistant District Attorney, with him M. Joseph Melody, Assistant District Attorney, and William H. Lamb, District Attorney, for Commonwealth, appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones took no part in the consideration or decision of this case.
The appellant, Robert W. Fell, was convicted by a jury of murder in the first degree, and the penalty was fixed at life imprisonment. After post trial motions were denied and sentence was imposed as the jury directed, this appeal was filed.
Although appellant does not challenge the sufficiency of the evidence, we have reviewed the record and find ample evidence to support a conviction of murder in the first degree. The record establishes the following facts.
On Sunday, July 6, 1969, about 9:30 p.m., Fell went to the apartment of his estranged wife in the Borough of West Chester, Chester County, where she was living with one Adolfo Rivera. His visit was ostensibly to deliver presents to his daughter. Before the visit, Fell had placed a .38 calibre revolver in a gym bag which he carried with him.*fn1 Upon being admitted to the apartment, Fell proceeded to a bedroom where his wife and Rivera were in bed together. He withdrew the revolver from the bag and said to his wife: "If you don't live with me, you don't live with anybody else." He then fired ten to fourteen shots from the revolver at his wife and Rivera. The former was killed, but Rivera, although seriously wounded, survived. When the police arrived on the scene, Fell said, "I did it. I did it."
In defense, Fell testified to marital problems he had with his wife. He explained possession of the revolver on the night in question by saying he had intentions of delivering it to a friend for hunting purposes. He stated upon entering the apartment, his wife engaged him in a heated argument over the support of their child, and after this he said he remembered nothing until the police arrived.
Initially, Fell complains the charge of the trial court failed to adequately distinguish voluntary manslaughter from first degree murder and "effectively foreclosed a manslaughter verdict."
An examination of the record discloses that in the first instance, the judge defined voluntary ...