decided: July 8, 1977.
COMMONWEALTH OF PENNSYLVANIA
EDWARD WHITFIELD, APPELLANT (TWO CASES)
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.
[ 474 Pa. Page 31]
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
[ 474 Pa. Page 32]
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
[ 474 Pa. Page 33]
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
[ 474 Pa. Page 34]
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
[ 474 Pa. Page 35]
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 matter how overwhelming the evidence of guilt.
The Court stated:
"An expression by the judge that in his opinion the accused is guilty leaves an indelible imprint on the minds of the jury. The jury is undoubtedly going to attribute to the judge, because of his experience in criminal cases, special expertise in determining guilt or innocence. As Mr. Justice (later Chief Justice) Kephart stated for this Court: 'The judge occupies an exalted and dignified position; he is the one person whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box . . . . To depart from the clear line of duty through questions, expressions or conduct, contravenes the orderly administration of justice. It has the tendency to take from one of the parties the right to a fair and impartial trial, as guaranteed under our system of jurisprudence.' [ Commonwealth v. Myma, 278 Pa. 505, 508, 123 A. 486, 487 (1924).]"
448 Pa. at 95, 290 A.2d at 75; see Commonwealth v. Motley, 448 Pa. 110, 289 A.2d 724 (1972); ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 5.6(a) (Approved Draft, 1972) ("The trial judge should not express or otherwise indicate to the jury his personal opinion whether the defendant is guilty or express an opinion that certain testimony is worthy or unworthy of belief.").
[ 474 Pa. Page 36]
These considerations apply with equal force to trial courts' opinions concerning a defendant's degree of guilt. The jury's verdict in a murder trial necessarily includes not only a determination of guilt or innocence but also a determination of the degree of guilt. The latter decision is often as important as the former, particularly in homicide cases. As Mr. Justice Powell, speaking for a unanimous United States Supreme Court, recently stated:
"The safeguards of due process are not rendered unavailing simply because a determination may already have been reached that would stigmatize the defendant and that might lead to a significant impairment of personal liberty. The fact remains that the consequences resulting from a verdict of murder, as compared with a verdict of manslaughter differ significantly."
Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S.Ct. 1881, 1889, 44 L.Ed.2d 508 (1975). Our constitutional system of trial by jury is founded upon the firm belief that the highest quality of criminal justice is achieved when the jury retains the sole power to determine both guilt or innocence and the degree of guilt if guilt is found.
Thus, because of the court's influence over the jury, an opinion by the trial court that a defendant is either guilty of murder or not guilty of any kind of unlawful homicide effectively removes voluntary manslaughter as a potential verdict from the jury's deliberations. This is a prohibited invasion of the province of the jury and denies appellant his constitutional right to a fair trial before an impartial jury. See Commonwealth v. Archambault, supra.*fn7
The instruction here presents a sharp contrast to the cases in which this Court has found that a trial court's expression of opinion as to the degree of a defendant's guilt was not
[ 474 Pa. Page 37]
error.*fn8 In Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977), Mr. Justice Pomeroy, speaking for a majority of this Court,*fn9 stated that two conditions must exist before a
[ 474 Pa. Page 38]
trial court may express its opinion that the evidence would not support a voluntary manslaughter verdict:
"[I]t is clear that two principal conditions must be met before such an expression of opinion may properly be included in such a charge: (1) the trial court must fully inform the jury of its 'power' to return a verdict of voluntary manslaughter, whether supported by the evidence or not; and (2) the court must also instruct the jury that it is not bound by the court's comments concerning the evidence because it is the jury which is the sole finder of the facts."
Id. 471 Pa. at 427, 370 A.2d at 377.
Here, unlike Bennett, the trial court did not inform the jury that it had the power to return a verdict of voluntary manslaughter even absent any evidence of voluntary manslaughter. Unlike Bennett, the trial court did not instruct the jury that even though the court did not find any evidence of passion or provocation, the jury was not bound by the court's opinion.*fn10 Rather, the trial court instructed the jury that appellant was either guilty of murder or not guilty of any kind of unlawful homicide. This instruction misstated the law and took away from the jury its power to return a voluntary manslaughter verdict.
Appellant's trial occurred before Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974) (equally divided court), in
[ 474 Pa. Page 39]
which all six justices who participated agreed that after the date Jones was filed, a trial court must give a requested charge on voluntary manslaughter in every murder trial, even though there is no evidence of voluntary manslaughter.*fn11 Although a majority of this Court prior to Jones accepted the view that a trial court had discretion whether to instruct the jury on voluntary manslaughter, e. g., Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972), our cases establish that even before Jones, if a trial court expressed its opinion that the evidence would not support a verdict of voluntary manslaughter, the court was required to inform the jury that it is not bound by the court's comments on the evidence and that it has the power to return a verdict of voluntary manslaughter. Commonwealth v. Bennett, supra; Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). These cases recognize the difference between an instruction which omits a relevant principle of law and an instruction which affirmatively misstates the law. As Mr. Justice Stevens, writing for a majority of the United States Supreme Court, recently noted: "An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977).
This case is controlled by the principles articulated in Commonwealth v. Bennett, supra, and Commonwealth v. Yount, supra. Here, the trial court expressed its opinion that appellant was either guilty of murder or not guilty of any kind of unlawful homicide. The trial court did not cure this prejudicial misstatement of the law by instructing the jury that it had the power to return a verdict of voluntary
[ 474 Pa. Page 40]
manslaughter and that it was not bound by the trial court's comments on the evidence. The trial court's comment as to the degree of appellant's guilt thus deprived him of a fair trial.*fn12
The trial court's impermissible comment on the degree of appellant's guilt on the murder charge only mandates a new trial for the charge of murder. This error in no way affects the judgment of sentence for aggravated robbery. Therefore we must address appellant's remaining claims.
Appellant first attacks the sufficiency of the evidence to support his conviction for robbery and murder of the second degree.*fn13 The test for sufficiency of the evidence is:
". . . whether, viewing all of the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt."
Commonwealth v. Bastone, 466 Pa. 548, 552, 353 A.2d 827, 829 (1976); see Commonwealth v. Kichline, 468 Pa. 265, 271-273, 361 A.2d 282, 285-86 (1976); Commonwealth v. Green, 464 Pa. 557, 565, 347 A.2d 682, 686 (1975); Commonwealth v. Yount, 455 Pa. 303, 320, 314 A.2d 242, 251 (1974); Commonwealth v. Carbonetto, 455 Pa. 93, 95, 314 A.2d 304, 305 (1974).
The Commonwealth's case was built largely upon the testimony of three witnesses. The first witness, Harold
[ 474 Pa. Page 41]
Scott, testified that at approximately 1:00 a. m. August 11, 1970, he was with a group of persons sitting on the front steps of his house. In this group were Audrey Scott (Harold's wife), Marie Scott (no relation), Emmett Scott (Harold's brother), a man named Kirby, and a couple whose names Harold did not know.
Harold stated that a light-colored automobile occupied by a single male parked across the street from his house. Moments later, appellant, Robert Brown (appellant's half-brother), and George Bloodworth approached the light-colored car. According to Harold, Bloodworth and appellant dragged the man from the car and carried him to a nearby vacant lot. Harold heard some rustling noises. A few minutes later Bloodworth and appellant walked toward Harold's front steps. Appellant came to pick up his half-brother who had not gone onto the vacant lot but had stumbled over to Harold's steps and fallen asleep. Appellant left with his half-brother. Bloodworth offered to sell Harold a watch. When Harold refused to buy the watch, Bloodworth walked away, but returned momentarily. After again trying unsuccessfully to sell Harold a watch, Bloodworth drove off in the light-colored car.
Harold further testified that after the three men left, he heard moans and cries for help from the vacant lot. He walked over to the lot to investigate but did not enter it. Instead, Harold left to find a pay telephone; he called the police and returned to the vacant lot. The investigating officer found a seriously injured man. Harold helped the police to place this man on a stretcher.
Audrey Scott also testified that she was sitting outside her house with her husband and the others. Audrey recalled that a light-colored car occupied by a single male parked across the street and that appellant and Bloodworth removed this man from the automobile and took him to the vacant lot. At this time, she entered her house because she did not want to get involved. She stated that she came out of her house later and saw Bloodworth offer to sell her husband a watch.
[ 474 Pa. Page 42]
Marie Scott was a third witness to the August 11 episode. She recalled sitting on the steps of Harold's house with Harold, Audrey, Emmett, and another man whose name she did not know. She testified that the car that parked across the street was black. She stated that appellant helped Bloodworth drag the occupant from his car. At this point Marie entered Harold's house. As she was entering the house, she noticed Harold walking toward Bloodworth who was dragging the man into the vacant lot.
The Commonwealth called Maryann Yeager to identify the victim. She testified that she had been living with Townsend. She last saw him alive on the morning of August 10, 1970. When she last saw Townsend, he had a watch, a wallet, and keys with him, and was in good physical condition. She testified that on that morning she had lent the victim her white, 1964 Buick. Yeager stated that Townsend called her from a bar that night. This bar is located a half block from where Townsend was discovered beaten.
When discovered, Townsend was barely conscious and unable to talk. His clothes were dirty and disarrayed, his shirt was torn, his face was bloody and swollen, and only one shoe remained on his feet. He did not have in his possession either wallet, watch, or keys.
Appellant took the stand in his own defense and denied any participation in the murder or robbery of Townsend. When asked where he was during the time in question, he stated that he could not remember.
The Commonwealth witnesses were subjected to extensive and vigorous cross-examination. As this Court stated in Commonwealth v. McIntyre, 451 Pa. 42, 47, 301 A.2d 832, 834 (1973), it is "within the province of the jury to accept or reject the evidence produced by the Commonwealth." Accord, Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977); Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976). Although no person witnessed the actual beating and robbery of Townsend, the circumstantial evidence offered by the Commonwealth, if believed, was
[ 474 Pa. Page 43]
sufficient to supply a "combination of evidence link[ing] the defendant to the crime beyond a reasonable doubt." Commonwealth v. Petrisko, 442 Pa. 575, 580, 275 A.2d 46, 49 (1971); Commonwealth v. McIntyre, supra. Reviewing the whole record, we are satisfied that the jury had before it sufficient evidence to find beyond a reasonable doubt that appellant was guilty of murder of the second degree and aggravated robbery.*fn14
Appellant's next contention is that a remark elicited by the Commonwealth from Harold Scott was so prejudicial that he was denied a fair trial. The remark was made on the third day of a six-day trial; it was the first day during which testimony was taken. The prosecutor was questioning Harold about his recollection of August 11, when the following took place.
"Q. [District attorney] Now, Mr. Scott, you were sitting on your step and you saw all this, right? You saw this guy get dragged out of the car and be taken off to the lot; is that right?
"A. [Harold Scott] Right.
"Q. Why didn't you go over and help the man?
"A. Because I was afraid.
"Q. What were you afraid of?
"A. Of them. I seen them work over people before."
Defense counsel immediately objected and a recess was called. At the conclusion of the recess, the trial court emphatically instructed the jury that it was to disregard that portion of Harold's answer expressing any opinion of appellant's prior conduct.*fn15
[ 474 Pa. Page 44]
No challenge is made to the substance of this instruction. Indeed, both defense counsel and the prosecutor conferred with the trial court in reaching a satisfactory instruction. Appellant asserts, rather, that no instruction could cure the prejudice resulting from Harold Scott's volunteered response. We cannot agree. The fair and complete instruction given by the trial court removed whatever prejudicial effect may have been occasioned by Harold's spontaneous remark. Commonwealth v. Ravenell, 448 Pa. 162, 170-71, 292 A.2d 365, 369-70 (1972);*fn16 see Commonwealth v. Martinolich, 456 Pa. 136, 148-50, 318 A.2d 680, 687-88, cert.
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denied, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974) (improper comment by prosecutor cured by immediate instruction and jury charge; ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge §§ 5.6(b), 5.7 (Approved Draft, 1972).
It is further asserted that the trial court failed to adequately charge on the weakness of accomplices' testimony. See generally 7 J. Wigmore, Evidence §§ 2056-60 (3d ed. 1940); 2 G. Henry, Pennsylvania Evidence § 798 (1953) and cases cited therein. Appellant requested and received a charge that if Marie Scott's statement that she witnessed Harold approaching the light-colored car was believed, then one could infer that Harold was appellant's accomplice, and that as an accomplice, Harold's testimony was suspect and should be viewed with careful scrutiny.
Appellant urges that from Marie's testimony an inference could be drawn that Harold was Bloodworth's sole accomplice and that appellant was not at all involved.*fn17 An examination of Marie Scott's testimony unequivocally refutes this contention.*fn18 The trial court properly refused to
[ 474 Pa. Page 46]
amend its charge on accomplice testimony in this respect. See Commonwealth v. Sisak, 436 Pa. 262, 266-68, 259 A.2d 428, 430-32 (1969).*fn19
The judgment of sentence for murder of the second degree is reversed and a new trial granted. The judgment of sentence for aggravated robbery is affirmed.