John J. Dean, Lester G. Nauhaus, Ira C. Houck, Jr., Louis R. Dadowski, Jr., Pittsburgh, for appellant.
Robert L. Eberhardt, Asst. Dist. Atty., Robert E. Colville, Dist. Atty., Robert Zunich, Asst. Dist. Atty., Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix J., did not participate in the consideration or decision of this case.
Appellant, William Albert Brado, was indicted in Allegheny County on a bill of indictment wherein he was charged with murder and voluntary manslaughter, and on a second bill of indictment wherein he was charged, inter alia, with a violation of the Controlled Substance, Drug, Device and Cosmetic Act*fn1 and unlawfully carrying a firearm without a license. On the morning of the day the indictments were called for trial, Brado with the assistance of counsel entered a plea of guilty to a violation of the Controlled Substance Act and to unlawfully carrying a firearm. He plead not guilty and elected to go to trial on the murder and manslaughter indictment. A jury was impaneled and at the conclusion of the trial, Brado was convicted of voluntary manslaughter. Following denial of post-verdict motions, consecutive prison sentences were imposed on each indictment. An appeal from the judgment imposed on the manslaughter conviction was entered in this Court. An appeal from the judgment imposed on the second indictment was entered in the Superior Court and later certified here. However, this last mentioned appeal is not now pressed.
The pertinent facts, as disclosed by the record, are these:
On December 8, 1974, Brado and his friend, John Fessler, together with two female companions, were patrons at the Barngrover Tavern located on South Pioneer Road, Hampton Township, Allegheny County, Pennsylvania. Both Brado and Fessler were professional truck drivers, and had just completed a two-day road trip. During the course of the trip Brado had ingested eight to ten capsules containing preludin, a drug closely related to
amphetamine, to keep awake. The quartet had visited two other taverns before stopping at the Barngrover Tavern. After spending some time there, Fessler's date departed without telling her three companions. At about 1:30 a. m., after consuming a large quantity of alcohol, Brado became concerned about his friend's companion. When told she was with another man in the parking lot, Brado left the tavern, went to his tractor-trailer, took his .357 Magnum handgun from the truck, and approached the car which he believed contained the couple. Opening the left front door, Brado fired one shot at the male occupant, Jeffrey Schmaley, and immediately closed the door. The female occupant, who in fact was not Fessler's date, called the police. Schmaley died a short time later as a result of the gunshot wound. Brado testified at trial that his physical and mental condition was such at the time of the shooting he did not know what he was doing.
The morning the jury selection process for Brado's trial began, a local newspaper of wide circulation included a two-column editorial entitled, "Drunkenness As a Defense" which discussed this Court's recent decision in Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975). The editorial included a highly critical discussion of the Graves decision and said in part that as a result of that ruling ". . . by claiming drunkenness one may now be able to escape punishment for premeditated murder, robbery, burglary and rape." The editorial was accompanied by a cartoon entitled "This Way Out" which depicted a judge in his robes on the bench excusing a criminal defendant, who was holding an indictment for murder, robbery, burglary and rape in one hand and drinking from a bottle labeled "Booze Defense" in the other hand. The Graves decision was denounced as a "socially intolerable conclusion," because among other things "the robber or rapist can in effect use inebriation with the same effectiveness as insanity to escape
punishment; but society cannot in turn protect itself by incarcerating in a mental institution criminals ...