F. Emmett Fitzpatrick, Jr. and J. M. Smith, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Division, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, C. J., and Pomeroy, J., concur in the result. Nix, J., concurs in the result in affirming the judgment of sentence for aggravated robbery and dissents from the reversal of the judgment of sentence for murder of the second degree. Jones, former C. J., did not participate in the decision of this case.
Appellant was convicted following a jury trial of murder of the second degree, aggravated robbery and conspiracy to commit murder and robbery for his participation in the fatal beating of Raymond Townsend.*fn1 The trial court sentenced appellant to two concurrent ten to twenty year prison terms on the murder and robbery convictions, and suspended sentence on the conspiracy conviction.
Appellant contends that the trial court denied him a fair trial when it commented on the degree of his guilt on the murder charge.*fn2 We agree, reverse the judgment of
sentence for murder, and grant appellant a new trial. However, the trial court's impermissible comment on the degree of appellant's guilt only mandates a new trial for the murder charge. Appellant's remaining claims are without merit and we accordingly affirm the judgment of sentence on the aggravated robbery conviction.
In its charge to the jury, the trial court stated over objection:*fn3
"The Commonwealth contends that there is nothing in the evidence in this case which would warrant any finding by the jury that the killing of Townsend was committed under provocation or momentary frenzy or passion, and with this contention the Court concurs, and I therefore instruct you that under the evidence of this case this defendant is guilty of murder or he is not guilty of any kind of unlawful homicide." (emphasis added)
This comment exceeded the permissible bounds of judicial comment and improperly impinged upon the exclusive province of the jury. This expression of opinion as to the degree of appellant's guilt deprived him of a fair trial. Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972).
Contrary to the court's charge, the jury properly could have returned a voluntary manslaughter verdict in this case. In every prosecution for murder where the evidence would sustain a murder conviction, the jury may
return, and the court must accept, a voluntary manslaughter verdict, even in the absence of any evidence of voluntary manslaughter.*fn4 Our cases reason that voluntary manslaughter is by definition a lesser included offense of murder,*fn5 and that a jury, pursuant to its inherent mercy dispensing power, may, from sympathy or awareness of extenuating circumstances, find a defendant guilty of voluntary manslaughter in the absence of any evidence of legally recognized mitigating circumstances.*fn6 Although voluntary manslaughter
is defined in terms of provocation, heat of passion and imperfect self-defense, the defendant has no burden to introduce such factors before a voluntary manslaughter verdict is permissible. Voluntary manslaughter is a permissible verdict whether or not the defendant presents a defense.
The trial court's instruction here, that appellant was either guilty of murder or not guilty of any kind of unlawful homicide, communicated to the jury that if it determined that appellant committed the homicide, it must find that appellant committed murder and not voluntary manslaughter. This improperly impinged upon the exclusive province of the jury, particularly since the trial court did not inform the jury of its power to return a voluntary manslaughter verdict. Although appellant requested a voluntary manslaughter charge, this request was denied. Thus, the only instruction regarding voluntary manslaughter was a misstatement of the law that the jury could only return a verdict of murder or not guilty of any kind of unlawful homicide. At no time did the trial court inform the jury that voluntary manslaughter was a permissible verdict. See e. g., Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977).
Although this Court has recognized the duty of the trial court to aid the jury in understanding and clarifying the issues to be resolved, the court's charge should be a calm and dispassionate one. Commonwealth v. Trunk, 311 Pa. 555, 565-66, 167 A. 333, 337 (1933). The jury depends on the trial court for guidance and it will give great weight to any
expressions of the court's personal opinion. Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972); Commonwealth v. Myma, 278 Pa. 505, 123 A. 486 (1924). To preserve a defendant's right to a fair trial, the trial court must be careful to remain absolutely impartial, and not to invade the province of the jury. Commonwealth v. Archambault, supra; Commonwealth v. Myma, supra.
In Archambault, this Court, after considering the need for judicial impartiality, held that a trial court must never express to the jury its personal view of guilt or innocence no ...