Joseph C. Mesics, Public Defender, Lebanon, for appellant.
David J. Brightbill, Asst. Dist Atty., Lebanon, George E. Christianson, Dist. Atty., Lebanon, for Commonwealth-appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion. O'Brien, J., concurs in the result. Jones, C. J., and Eagen, J., dissent.
The appellant, John M. McNeill, was convicted in a jury trial of murder in the first degree. Post-trial motions were denied and this appeal followed. The appellant now raises, as he did in post-trial motions, two issues concerning portions of the trial court's charge to the jury. These portions were specifically objected to at trial and are properly before us now.
The prosecution's evidence at trial revealed that at approximately 11:30 p. m., on December 20, 1972, the appellant, and a friend, William Paul Kerr, were at Sam's Bar in Lebanon, Pennsylvania. Appellant was seated several bar stools away from a Donald Ratcliffe, whom appellant recognized as a fellow Bethlehem Steel Company worker, but with whom appellant was not personally acquainted. A conversation ensued between appellant and Ratcliffe which, in a period of about one-half hour, deteriorated into an argument instigated by Ratcliffe. During this period of time, Ratcliffe verbally harassed appellant and referred to appellant's deceased father as crazy, stupid, and retarded, and generally continued to degrade appellant's deceased father. The appellant became enraged, slammed his glass of beer on the bar, and left followed immediately by his friend, Kerr. Outside the bar, appellant told Kerr that he was going to get his gun and "kill that guy." Appellant then walked the three blocks from the bar to his residence, picked up and loaded his revolver, walked back, and reentered the bar. Immediately after reentering the bar, he shot and killed
Ratcliffe, while yelling "foul things" at the deceased. All this occurred within about ten minutes from the time appellant left the bar enraged.
After the shooting, appellant remained on the scene, turned the revolver over to the bartender, and requested that the police be called. A police officer arrived shortly after the incident and saw the appellant seated at the bar. He testified that appellant turned to him and said: "I shot him. . . . I'd do it again."
Evidence produced by the defendant indicated that appellant's father had died two or three years earlier while appellant was out of town. Testimony disclosed that appellant and his father were very close, that shortly before his father's death, appellant and his father had had an argument which resulted in appellant's leaving in anger for Washington, D. C., for a period of time. When appellant returned to his home, his father was dead, and appellant apparently suffered an anxiety reaction because the hostile feelings engendered by this argument had not been worked out before his father's death. Testimony also disclosed that appellant felt great respect and affection for his father, and one witness testified to seeing appellant crying as appellant talked about his father's death on the occasion of what would have been his father's birthday.
Appellant claims that the trial court's charge to the jury was prejudicial and constituted reversible error. He first argues that the trial court, while summarizing the evidence for the jury, drew several inferences favorable to the prosecution without informing the jury as to any counterbalancing inferences favoring the appellant that could be drawn from the evidence. Secondly, appellant claims that the trial court, although instructing the jury on voluntary manslaughter, erred in telling the jury that in the trial court's opinion ...