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decided: October 7, 1977.



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.

Author: Pomeroy

[ 474 Pa. Page 433]


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.

[ 474 Pa. Page 434]


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);

[ 474 Pa. Page 435]

    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

[ 474 Pa. Page 437]

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

[ 474 Pa. Page 438]

    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.

[ 474 Pa. Page 439]

§ 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 definitions therein contained by which we must be guided.

The Crimes Code in Chapter 25, for the first time in Pennsylvania, establishes an offense known as "criminal homicide". A person is guilty of this crime "if he intentionally, knowingly, recklessly or negligently causes the death of another human being." 18 Pa.C.S. § 2501(a). The Code then states that "[c]riminal homicide [is] classified as murder, voluntary manslaughter, or involuntary manslaughter." Ibid. § 2501(b). (Emphasis supplied.) Murder is in turn divided into three categories: murder of the first degree, murder of the second degree, and murder of the third degree. Ibid. § 2502.*fn11 Murder of the first degree and of the second degree under the Crimes Code together correspond to murder in the first degree under prior law; the new murder of the first degree is an intentional killing, while the new murder of the second degree is felony-murder. Murder of the third degree is comprised of "all other kinds of murder" 18 Pa.C.S. § 2502(c) (Supp. 1977-1978), thus taking the place of the former murder in the second degree, which the Penal Code described in the same words.*fn12 The

[ 474 Pa. Page 440]

    remaining two species of criminal homicide are voluntary manslaughter and involuntary manslaughter. They also are defined in the Crimes Code in the same basic terms as in prior law.*fn13 18 Pa.C.S. §§ 2503, 2504.

We think that the structure of Chapter 25 of the Crimes Code in which the above cited sections appear is such as to create one major homicide offense, that of criminal homicide, and that the several types of homicide, namely, murder of any of the three named degrees and voluntary and involuntary manslaughter are constituent subsidiary offenses within the single major offense. All grades of unlawful killing thus have been made lesser included offenses of the overall crime of criminal homicide.*fn14 The differences between the classifications are largely a function of the state of mind of the perpetrator. This becomes clear when one examines the ranking for culpability purposes of

[ 474 Pa. Page 441]

    the several categories of criminal homicide.*fn15 Premeditated, intentional killing and killing in the course of committing a felony continue to be equated as the most highly culpable classes of criminal homicide.*fn16 A felonious and malicious killing without a specific intent to take life (murder of the third degree, formerly second degree) is placed by the Code in the next highest degree of culpability, a felony of the first degree. 18 Pa.C.S. § 2502(c). Next in seriousness is a killing which, although intentional, is committed when the actor is under the influence of a sudden and intense passion resulting from serious provocation or is acting in the unreasonable belief that the circumstances would justify a killing. This subdivision of criminal homicide, voluntary manslaughter, is punishable as a felony of the second degree. 18 Pa.C.S. § 2503. Involuntary manslaughter, with which we are here concerned, is committed when the death of a person is caused as a direct result either of a lawful act or of an unlawful act done in a "reckless or grossly negligent manner," 18 Pa.C.S. § 2504.*fn17 In the scale of culpability, such a killing is a misdemeanor of the first degree. Id. § 2504(b).

[ 474 Pa. Page 442]

Like murder of the third degree, involuntary manslaughter is an un intentional killing. See Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973). What is more important for our present purposes is the fact that under the Crimes Code it is a killing which requires a state of mind which is in effect simply a gradation on the ascending scale of culpability culminating in malice. The state of mind which characterizes involuntary manslaughter is not malicious; it is referred to as "criminal negligence" and is evidenced by acts, whether lawful or unlawful, done in a "reckless or grossly negligent" manner as those terms are defined. See 18 Pa.C.S. § 2504; see also n. 17, supra; Commonwealth v. Jones, 452 Pa. 569, 578-79, 308 A.2d 598 (1973). In Commonwealth v. Aurick, 342 Pa. 282, 288-89, 19 A.2d 920, 923 (1941), this Court stated that to constitute involuntary manslaughter "'[t]he negligence must be such a departure from what would be the conduct of an ordinary prudent or careful man under the circumstances as to evidence a disregard of human life or an indifference to consequences.'" See also Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961); Commonwealth v. LaPorta, 218 Pa. Super. 1, 272 A.2d 516 (1970); Commonwealth v. Clowser, 212 Pa. Super. 208, 239 A.2d 870 (1968); Commonwealth v. Hartle, 200 Pa. Super. 318, 188 A.2d 798 (1963).

We thus hold, to summarize, that because the legislature has classified both murder and involuntary manslaughter as subdivisions of the major offense of criminal homicide, a defendant who has been charged with murder is entitled on request to have the jury instructed on the elements of involuntary manslaughter at least where evidence is presented at his trial on which a verdict of that less serious offense could rationally be based.*fn18

[ 474 Pa. Page 443]


It remains to determine whether from the evidence in this case a jury might rationally conclude that Michael Polimeni was guilty of involuntary manslaughter. As noted above, the Crimes Code definition of involuntary manslaughter is substantially declaratory of our previous law:

"A person is guilty of involuntary manslaughter when as a direct result of the doing of a lawful action in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person." 18 Pa.C.S.A. § 2504(a) (1973).

See also 18 Pa.C.S.A. § 302(b)(3) and 302(b)(4) (1973), supra n. 17, where the Code defines reckless and negligent conduct. Viewing the evidence in the light most favorable to the appellant*fn19 we must then determine whether the jury could find defendant's actions to have been unintentional but "reckless or grossly negligent" within the meaning of the Code provisions. The evidence at trial showed the following sequence of events:*fn20

On the evening of August 22, 1973, Michael Polimeni, the appellant, invited one Nicky Dellaquilla and one William Grande to the house appellant shared with his brother, Peter Polimeni. The purpose for the proposed meeting was to discuss some missing pills and a pill bottle belonging to Polimeni which he believed Dellaquilla had stolen. When Dellaquilla and Grande arrived at appellant's home at about 11:30 p. m., there were with them four other men: David Dowling, John Dyer, Frederick Kostanich and Kenneth Patterson. Surprised at seeing the others, appellant went into his bedroom alone, removed a loaded .38 caliber pistol from the safe there and placed the gun in his back trouser pocket.

[ 474 Pa. Page 444]

He thereupon joined the others, including his brother Peter, in the downstairs game room. A discussion ensued between himself and Dellaquilla concerning the missing pills, with the appellant at one point threatening to notify the police of Dellaquilla's alleged thievery. At that point, Kostanich intervened and turned the discussion towards an auto theft and crash involving Dellaquilla, one Churchill and a car belonging to a friend of Polimeni's.

Appellant began to poke Kostanich in the chest and request that he depart from his home. It was then that Patterson, who apparently had been about to leave, came back into the game room, raised his right hand into the air and announced, "This is the hand of God." Polimeni responded, "Well, f-u- and the hand of God." Patterson then advanced on Polimeni, grabbed him around the neck and began choking him, saying, "This is the hand of God, it is going to kill you." At this point Peter Polimeni joined the scuffle and removed Patterson's hands from his brother's neck, but Patterson again grabbed at Michael Polimeni, who then removed the gun from his pocket and said to Patterson, "Get out of my house or I'll shoot." "Shoot, mother f'r," responded Patterson. Beginning to feel faint and as if he might "black out," appellant pushed Patterson away from him with one hand, and with the other began to fire his gun. He emptied the five shot pistol, striking Patterson three times and wounding him mortally.*fn21

[ 474 Pa. Page 445]

From this account, three defense arguments may be drawn: (1) Polimeni justifiably killed Patterson in self-defense, and was guilty of no crime; (2) Polimeni's fear of his life was not reasonable, or he used excessive force in countering Patterson's attack on him, in either of which events appellant's crime would be voluntary manslaughter; (3) Polimeni's actions were reckless in that he consciously disregarded a substantial and unjustifiable risk that death or serious bodily harm might result to Patterson from Polimeni's pulling his gun and firing, in which case appellant would be guilty of involuntary manslaughter. 18 Pa.C.S.A.

[ 474 Pa. Page 446]

§ 2504(a); 18 Pa.C.S. § 302(b)(3). The third alternative is weakened, to be sure, by appellant's admission that he knew he was aiming the gun at the victim, but this came on cross-examination after appellant had given conflicting versions ("I don't know if I was aiming it"; ". . . didn't really aim, just pulled [the gun] out kind of in the direction our bodies were, so I didn't know what part of his body I was aiming at or anything.") Despite the ambiguity and ambivalence of these statements the jury could have concluded that Polimeni's conduct was in the category of recklessness (involuntary manslaughter) rather than of intentional killing either under sudden and intense passion resulting from serious provocation by Patterson or in the unreasonable belief that the killing would be justified (voluntary manslaughter).

The resolution of these conflicting interpretations of the facts is for the jury, which, of course, has authority to believe all, part of or none of a witness' testimony. Commonwealth v. Marlin, 452 Pa. 380, 305 A.2d 14 (1973); Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972); Commonwealth v. Petrisko, 442 Pa. 575, 275 A.2d 46 (1971).

In conclusion, we think that Mr. Justice EAGEN's statement in Commonwealth v. Stock, supra, 463 Pa. at 553, 345 A.2d at 657 (opinion announcing the decision of the Court) is equally germane to the case at bar:

"We believe the evidence presented would have supported a verdict of involuntary manslaughter. The jury, crediting Stock's testimony could have determined the fatal wounding of Rhodes was unintentional and accidental. Furthermore, the jury, applying its knowledge and experience, could have concluded that Stock's conduct which contributed to the killing, while unlawful and criminally negligent within the definition of involuntary manslaughter, was not so negligent as to reach the level of recklessness and wantonness required for a murder conviction. Therefore, since the jury could have viewed Stock's conduct as coming within the ambit of involuntary manslaughter, it was error for the trial court . . . [not]

[ 474 Pa. Page 447]

    to present involuntary manslaughter as a possible verdict." (Footnotes omitted)

Judgment of sentence is reversed and case remanded for a new trial.

ROBERTS, Justice, concurring.

For the reasons stated in Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1976) (plurality opinion), I believe that a defendant is entitled upon request to a charge on involuntary manslaughter in every prosecution for criminal homicide under the Crimes Code, 18 Pa.C.S.A. § 2501 (1973). I therefore agree with the majority that appellant is entitled to a new trial.

MANDERINO, Justice, concurring.

I agree with the majority that appellant is entitled to a new trial because one accused of criminal homicide is entitled to an instruction on involuntary manslaughter, if requested, whether or not there is any "rational basis" in the mind of the trial judge for such a verdict.

To refuse to hold that it is error not to instruct on involuntary manslaughter, even in a case where there is no "rational basis" upon which the jury could return such a verdict sets the stage for the same issue which confronted this Court previously concerning voluntary manslaughter.

The problem in the voluntary manslaughter area began when a jury returned a verdict of voluntary manslaughter even though there had been no charge as to voluntary

[ 474 Pa. Page 448]

    manslaughter. We were then confronted with the issue of whether to accept the voluntary manslaughter verdict (for which there had not been a charge) or refuse to accept the voluntary manslaughter verdict as valid. If the voluntary manslaughter verdict had not been accepted, the Court, of necessity, would have had to enter a verdict of acquittal overruling the jury's verdict of guilty of voluntary manslaughter. This Court refused to ignore the voluntary manslaughter verdict under such circumstances, and held that it was within the authority of the jury to return such a verdict, even though the jury had not been instructed on voluntary manslaughter.

What happens when jurors return a verdict of involuntary manslaughter, even though they have not been charged on that crime, because in their wisdom they believe that a lesser degree of guilt is involved in the case? This Court will then have to decide, as it once did in the voluntary manslaughter area, whether to accept the involuntary manslaughter verdict as valid, even though the jury was not charged on the crime, or to refuse to accept the jury's verdict and enter a verdict of acquittal.

The proper justice in a given case frequently involves close questions. I do not understand why judges or justices assume that they, rather than juries, can best resolve the close questions. We should eliminate artificial limitations on a jury's deliberations. The jury should be charged on involuntary manslaughter in all cases of criminal homicide. If in its wisdom a jury decides that involuntary manslaughter is a proper verdict, a judge should not disturb that verdict. There is no reason to fear that juries will irrationally return an involuntary manslaughter verdict in cases where there is no basis of any kind for such a verdict. The jury may, however, out of superior reasoning or compassion, disagree with the trial judge and bring in a verdict of involuntary manslaughter even though there is no "rational basis" in the court's mind for such a verdict.

In such close cases, I prefer the wisdom of twelve persons to that of a single judge. The ultimate justice of a given

[ 474 Pa. Page 449]

    case is more properly the prerogative of a jury than of a judge.

NIX, Justice, dissenting.

I dissent for the reasons set forth in my dissent in Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (filed Oct. 7, 1977).

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