John R. Merrick, Public Defender, Michael S. Barranco, Asst. Public Defender, for appellant.
William H. Lamb, Dist. Atty., F. Ned Hand, Timothy H. Knauer, Asst. Dist. Attys., West Chester, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen and Nix, JJ., join in Part I of this opinion but dissent from Part II.
On January 14, 1972, appellant Robert McNeil, while sitting in a bar in West Chester, was accosted by one Johnny Walker. A scuffle ensued. Appellant drew his pistol and fired several rounds, killing Walker and wounding a bystander. Appellant was charged with murder, aggravated assault and battery,*fn1 carrying a firearm without a license, and carrying a concealed deadly weapon. He was subsequently tried before a jury and convicted of murder in the first degree and the other crimes charged in the indictment. Post-verdict motions were filed and denied. The court sentenced appellant to serve a term of life imprisonment for first degree murder, to serve a term of one to three years imprisonment and to pay a $25 fine for aggravated assault and battery, and to pay $25 fines for each of the weapons offenses. This appeal ensued.*fn2
Appellant initially asserts that the charge to the jury was inadequate. He claims that the court failed to stress that if appellant killed while entertaining an unreasonable
belief that his act was necessary to protect himself from serious bodily harm or imminent death, appellant would be guilty only of voluntary manslaughter.
We do not reach the merits of appellant's claim because it was not timely raised at trial and was therefore not preserved for appellate review. At the conclusion of the court's charge, appellant's attorney approached the bench and conducted an unrecorded discussion with the court. Following this discussion the court gave the jury an additional instruction and counsel expressed satisfaction with this additional charge. After the jury retired to begin deliberation, a general exception to the charge was entered.
Approximately two hours after the jury retired, it requested further instructions on voluntary manslaughter. Appellant made no objection to the additional charge.
About one hour later, the jury again requested additional instructions -- this time as to the distinction between murder in the first and second degrees. At this time appellant's counsel requested that the ...