H. David Rothman, Pittsburgh, for appellant.
John J. Hickton, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Roberts, J., filed a concurring opinion in which O'Brien, J., joins. Manderino, J., filed a concurring opinion. Nix, J., filed a dissenting opinion.
Following a trial by jury, appellant Michael Polimeni was found guilty of voluntary manslaughter in connection with the shooting death of one Kenneth Patterson. Post-verdict motions were denied, and appellant was sentenced to a term of not less than three nor more than seven years imprisonment. In this direct appeal, Polimeni raises two issues: the first, a challenge to the array of the petit jury in the court of Common Pleas of Allegheny County; the second, a denial of a requested charge on involuntary manslaughter. We find the second claim to be meritorious and that a new trial must be had. Accordingly, we do not reach the merits of appellant's challenge to the array of the petit jury.
Appellant contends that he was denied a fair trial because the trial judge declined to charge the jury, as requested, on the offense of involuntary manslaughter.*fn1 The point for charge was refused because the appellant had not been indicted for and thus could not properly be convicted of that offense. The trial court's action was in accord with the prevailing case law in this Court. See, e.g., Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970); Commonwealth v. Reid, 432 Pa. 319, 247 A.2d 783 (1968); Commonwealth v. Edwards, 431 Pa. 44, 244 A.2d 683 (1968); Commonwealth v. Soudani, 398 Pa. 546, 159 A.2d 687 (1960); Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343 (1953); Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540 (1951);
words of the plurality opinion, "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."*fn3 Id. We hold, therefore, that where in a trial of a case on a murder indictment there is present from whatever source evidence which would permit the fact-finder to return a verdict of involuntary manslaughter, a defendant is entitled, upon request, to a charge on the elements of that offense.*fn4
It is arguable that the result we reach today could be derived through application of the common-law concept of lesser included offenses*fn5 and a determination that involuntary
manslaughter, like voluntary manslaughter, is a lesser included offense of murder.*fn6 Voluntary manslaughter has long been so regarded in Pennsylvania,*fn7 and authority elsewhere would support the proposition that, properly considered, involuntary manslaughter is also a lesser included offense of murder.*fn8 We need not, however, consider whether the common law rule in Pennsylvania should be changed, for we are of the opinion that our holding in the case at bar is required by the new Pennsylvania Crimes Code, 18 Pa.C.S.
§ 101 et seq.,*fn9 which was in effect at the time of the commission of the crimes here involved. This case being one of first impression under the Code,*fn10 it is necessary to consider the structure of that legislation and the ...