Louis M. Natali, Jr., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Maxine J. Stotland, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Manderino, J., joins in Part I of this opinion. Eagen, C. J., and Pomeroy, J., concur in the result. Nix, J., filed a concurring and dissenting opinion. Manderino, J., filed a concurring and dissenting opinion.
Appellant was indicted on charges of murder and conspiracy arising out of the August 17, 1973 stabbing death of Samuel Molten. On May 13, 1974, after a jury trial, appellant was found guilty of murder of the first degree and conspiracy. After post-verdict motions were denied appellant was sentenced to consecutive sentences of life imprisonment on the murder conviction and ten years probation on the conspiracy conviction. In this appeal*fn1 appellant contends that the trial court erred in refusing his request for a jury instruction on voluntary manslaughter. We agree, reverse judgment of sentence and grant appellant a new trial on the murder conviction.*fn2 Finding no error which affects the conviction for conspiracy, we affirm judgment of sentence on the conspiracy charge.
Appellant's trial began after this Court's decision in Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974). In Jones, we decided that for all trials after that opinion was filed a defendant charged with murder is entitled, upon request, to a jury instruction on voluntary manslaughter.*fn3
Thus, appellant was entitled to an instruction on voluntary manslaughter.
The trial court concluded that the rule adopted in Jones does not apply to prosecutions brought pursuant to the new Crimes Code.*fn4 However, Jones was decided nearly a year after the Crimes Code became effective, and announced a rule applicable to trials which commenced after the date of that decision.*fn5 Clearly, this Court contemplated that the rule would be applied to prosecutions brought pursuant to the Crimes Code. There is nothing in the Crimes Code which convinces us that our decision was incorrect.*fn6
The Commonwealth also contends that failure to instruct the jury on voluntary manslaughter was harmless error because the jury returned a verdict of guilty of murder of the first degree. We cannot conclude, however, that simply because the jury found appellant guilty of murder of the first degree instead of murder of the second degree, a jury instruction on voluntary manslaughter could not have
affected the verdict. In United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3d Cir. 1974) (en banc), cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975), a case which, like this case, involved a failure to grant a Pennsylvania defendant's ...