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COMMONWEALTH PENNSYLVANIA v. DONALD BERRY (04/17/75)

decided: April 17, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD BERRY, APPELLANT



COUNSEL

Mitchell S. Lipschutz, Neil Jokelson, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., James T. Ranney, Asst. Dist. Atty., Deputy Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.

Jones, C. J., and Eagen O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Nix

[ 461 Pa. Page 234]

OPINION OF THE COURT

Appellant, Donald Berry, was charged with the murder of Harry Beasley. A trial was had before a judge

[ 461 Pa. Page 235]

    and jury at the conclusion of which the appellant was found guilty of murder in the second degree. Post-trial motions were filed, argued, and, subsequently, denied. A sentence of from eight to twenty years imprisonment was imposed. This appeal followed.

The sole issue presented in the instant appeal concerns the propriety of the trial court's charge to the jury on the elements of voluntary manslaughter.

The pertinent facts relating to this issue are as follows:

Two neighbors, Veronica Berry and Harry Beasley, became embroiled in a quarrel. Veronica Berry spit in Harry Beasley's face and he in turn struck her, knocking her to the ground. Upon hearing his mother's scream, the appellant, Donald Berry, came immediately to the scene of altercation, and found his mother on the ground. She related to her son what had happened and described how she had been illused by Mr. Beasley. Five minutes later the appellant went to the Beasley home, gained entry by force and fatally wounded the deceased.

During the course of the trial judge's charge he stated:

"Now in defining the law to you concerning voluntary manslaughter I have said it must be a sufficient or reasonable provocation. As I will instruct you as a matter of law, that a blow struck against a person who is near or dear to you by virtue of a relationship -- and in this particular instance it is the relationship between a mother and a son, that if the blow struck to the mother in the presence of the son was such that would be ordinarily reasonable and sufficient provocation, that that blow struck against his mother, though not struck against ...


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