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decided: October 3, 1975.



H. David Rothman, Pittsburgh, for appellant.

John J. Hickton, Dist. Atty., John M. Tighe, First Asst. Dist. Atty., Robert L. Eberhardt, Lawrence N. Claus, Asst. Dist. Attys., Pittsburgh, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, Pomeroy and Manderino, JJ., filed concurring opinions. Nix, J., filed a dissenting opinion. Jones, C. J., took no part in the consideration or decision of this case.

Author: Eagen

[ 463 Pa. Page 319]


The appellant, Carol Moore, was indicted by the grand jury of Allegheny County on charges of murder and voluntary manslaughter in connection with the death of her husband, James Moore. She was also indicted on the charge of involuntary manslaughter. Although defense counsel sought consolidation of the indictments, the case proceeded to trial upon only the murder and voluntary manslaughter charges.

After a jury trial the appellant was convicted of voluntary manslaughter and sentenced to serve a maximum of three years imprisonment. Post trial motions were timely filed and denied. This direct appeal from the judgment of sentence then followed.

The appellant contends the trial court committed reversible error in refusing, after timely motion,*fn1 to consolidate for trial the two indictments arising out of the

[ 463 Pa. Page 320]

    same criminal conduct, one indictment being for murder and voluntary manslaughter, the other for involuntary manslaughter. She asserts the failure to consolidate the indictments and the concomitant refusal to charge the jury on involuntary manslaughter*fn2 prevented the jury from understanding the full significance of the law of homicide in Pennsylvania and led to a compromise verdict of voluntary manslaughter.

It is well-established that the propriety of consolidating separate indictments for trial is ultimately within the sound discretion of the trial court and the exercise of this discretion will be reversed only where it clearly appears that the rights of the defendant were thereby prejudiced. 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); Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 446, 71 A.2d 799 (1950), cert. denied, 339 U.S. 990, 70 S.Ct. 1015, 94 L.Ed. 1390 (1950). While cognizant of the discretion vested in the trial court, we believe that failure to proceed on an involuntary manslaughter indictment, when consolidation is requested, is prejudicial error where the evidence presented would support such a verdict. Commonwealth v. Thomas, 403 Pa. 553, 170 A.2d 112 (1961). See also Commonwealth v. Robinson, 452 Pa. 316, 305 A.2d 354 (1973); Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 (1938).*fn3 This is such a case.

[ 463 Pa. Page 321]

The facts of this case*fn4 indicate that on the day of the shooting, the deceased returned home from a motorcycle club meeting apparently in a hostile mood. While the appellant prepared dinner for her husband, he began cursing and yelling at her. Deciding that she had had enough of this treatment, the appellant went upstairs to their bedroom and prepared to leave her husband. She grabbed her pocketbook, placed some savings into it, and returned downstairs. When the appellant told her husband she was leaving him, he indicated that he would prevent her from going. The appellant then went back upstairs, placed her husband's loaded gun into her pocketbook, and proceeded downstairs. The deceased was later found on the floor of the living room with a fatal gunshot wound of the chest.

Appellant's contention is that the killing of her husband was accidental and involuntary, resulting from a struggle over the gun in her pocketbook.*fn5 This struggle allegedly occurred when her husband, seeking to prevent her from leaving with their savings, thrust his hand into her pocketbook and felt the gun. Since her hand was already in her pocketbook, feeling for her keys, it is contended their hands came together on the gun, precipitating a fight for control of it. Appellant claims that during this struggle the gun came out of her pocketbook and discharged, fatally wounding the deceased.

Although the Commonwealth, to refute the appellant's story, did present evidence indicating that no struggle took place, we need only examine the appellant's version in passing upon the propriety of consolidation.

[ 463 Pa. Page 322]

For it is within the jury's province to resolve conflicts in evidence, find where the truth lies and to determine the facts. Cf. Commonwealth v. Lowe, 460 Pa. 357, 333 A.2d 765 (1975); Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972). Thus, if a jury, giving credence to a defendant's version of an encounter could find that defendant guilty of involuntary manslaughter, fundamental fairness dictates the consolidation, upon request, of that indictment with the murder and voluntary manslaughter indictments as possible jury verdicts. As noted in Commonwealth v. Thomas, supra, the failure to consolidate leads to a refusal to instruct the jury on involuntary manslaughter. In those instances where an involuntary manslaughter verdict would be supported by the evidence, 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.

Involuntary manslaughter, which differs from murder in that specific intent and malice are absent, 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, 687 (1927). See also Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973); Commonwealth v. Flax, supra. 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).

Instantly, appellant's version, if believed by the jury, would have supported a verdict of involuntary

[ 463 Pa. Page 323]

    manslaughter.*fn6 Although her placing of the gun into her pocketbook for protection would not be an "unlawful act" within the definition of involuntary manslaughter, see Commonwealth v. Flax, supra, 331 Pa. at 157, 200 A. at 638, the jury may well have considered the subsequent struggle over a loaded weapon as needlessly creating a danger to human life, thus constituting criminally negligent conduct. Therefore, since the jury could have viewed appellant's conduct as criminally negligent, it was error for the trial court to deny consolidation upon request and fail to present involuntary manslaughter as a possible verdict.

Judgment reversed and new trial ordered.

ROBERTS, Justice (concurring).

In my view, the trial court's failure to instruct the jury on involuntary manslaughter, as requested by appellant, constitutes reversible error. Therefore, I concur in the judgment of the Court without reaching the question whether the trial court abused its discretion in refusing to consolidate the indictments for trial.

It is axiomatic that a trial court is required, at least when the defendant so requests, to illuminate all relevant legal issues for the jury and, in particular, to instruct

[ 463 Pa. Page 324]

    the jury on every verdict which it would be permissible for it to return. The minor premise, developed in this concurring opinion, is that a conviction of involuntary manslaughter would have been a permissible verdict in this case.


It is well settled in Pennsylvania that a criminal defendant may, at least in certain circumstances, be convicted, upon an indictment charging a particular offense, of a lesser offense which is constituent within the offense charged (the "lesser included offense" doctrine).*fn1 However, my research has uncovered no Pennsylvania statute,*fn2 rule, or case*fn3 which propounds a standard for

[ 463 Pa. Page 325]

    determining when an offense is included within a greater offense. The best articulation of such a standard, in my view, is found in section 1.07(4) of the American Law Institute's Model Penal Code:

"A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:

(a) it is established by proof of the same or less than all the facts required to establish the ...

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