Edgar M. Snyder, Watzman, Levenson & Snyder, Pittsburgh, for appellant.
Robert W. Duggan, Dist. Atty., Carol Mary Los, John G. Alford, Asst. Dist. Attys., Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, Pomeroy and Manderino, JJ., file separate concurring opinions. Nix, J., files a dissenting opinion.
The appellant, Gary Stock, was convicted by a jury in Allegheny County of voluntary manslaughter. Post trial motions were timely filed and denied. This direct appeal from the judgment of sentence then followed. Because we believe the trial court erred in refusing, after timely motion,*fn1 to consolidate for trial two indictments arising out of the same criminal conduct; one indictment being for murder and voluntary manslaughter; the other for involuntary manslaughter, we now reverse and order that Stock be given a new trial.*fn2
It is well-settled that the propriety of consolidating separate indictments for trial is ultimately within
the sound discretion of the trial court and its determination in this regard will not be disturbed unless it clearly appears the rights of the defendant were thereby prejudiced. Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1965); Commonwealth v. Patrick, 416 Pa. 437, 445, 206 A.2d 295 (1965); Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 132, 151 A.2d 480 (1959). However, "failure to proceed in an involuntary manslaughter indictment, when consolidation is requested, is prejudicial error where the evidence presented would support such a verdict." Commonwealth v. Moore, supra. See also Commonwealth v. Thomas, 403 Pa. 553, 170 A.2d 112 (1961). This is so because "the failure to consolidate leads to a refusal to instruct the jury on involuntary manslaughter"*fn3 and "the failure to so acquaint the jury prevents it from operating with full knowledge of the relevant law and precludes the defendant from having a fair trial." Commonwealth v. Moore, supra. See also Commonwealth v. Thomas, supra.
Involuntary manslaughter encompasses "'the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.'" Commonwealth v. Mayberry, 290 Pa. 195, 198, 138 A. 686, 686 (1927). See also Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973); Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 (1938). Where the act itself is not unlawful, to make it criminal, the negligence must be
such a departure from prudent conduct as to evidence a disregard for human life or an indifference to the consequences. Commonwealth v. Feinberg, 433 Pa. 558, 566, 253 A.2d 636 (1969); Commonwealth v. Aurick, 342 Pa. 282, 288-289, 19 A.2d 920 (1941). However, "the proof of negligence to support a charge of involuntary manslaughter need not be proof of acts or omissions exhibiting reckless, wicked and wanton disregard of the safety of others. Negligence of that high degree will support a charge of murder in the second degree. . . ." [Emphasis in original.] Commonwealth v. Aurick, supra at 290, 19 A.2d at 924. See also Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975).
The facts presented at trial were substantially undisputed and consisted primarily of an extra-judicial statement given the police by Stock and his in-court testimony, corroborative of the ...