No. 144 & 151 January Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division Criminal Section of Philadelphia County, imposed November 12, 1975 at No. 845 December Term, 1974 and No. 912 December Term, 1974
Joshua M. Briskin, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Jane Greenspan, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., filed a dissenting opinion in which Nix, J., joined.
On May 19, 1975, in a trial by jury, appellant, James McClendon, was found guilty of murder of the second degree, arson, and related charges. Post-verdict motions were
denied, and appellant was sentenced to life imprisonment on the charge of second degree murder and to a concurrent term of ten to twenty years imprisonment on the arson charge. Appellant appealed his murder conviction to this Court, and his conviction for arson to the Superior Court, which transferred it here.
Appellant contends that the trial court improperly expressed to the jury an opinion as to the proper degree of guilt and so worded its instructions that the jury had no choice but to find appellant guilty of second degree murder. We agree with appellant's contention, reverse the judgment of sentence for murder of the second degree, and remand for a new trial limited to the murder charge. Our disposition of this appeal leaves undisturbed appellant's conviction for arson.
There is no dispute as to the facts. On November 18, 1974, appellant, for retaliatory reasons, threw four firebombs at or into decedent's home. Decedent and his wife were the only persons inside the house. Decedent's wife, who was working in the downstairs kitchen, successfully awakened the decedent who had been sleeping upstairs. She testified that with the living room already aflame, the decedent followed her down the stairs and into the kitchen, but when she reached the gate in the back yard, she turned around to discover that her husband had not continued out of the house. She returned inside and called for her husband, at which point he hollered down from the second floor, "I'm going to put my clothes on." His return upstairs proved fatal; rescuers discovered him there, dead from smoke inhalation and thermal burns of the body surface.
We agree with appellant that the trial court's instructions to the jury, which consisted of the original charge and two responses to requests for additional instructions, not only impressed upon the jury the court's opinion as to the appropriate degree of guilt, but also effectively precluded the jury from returning any other verdict except second degree murder.
In its original charge, the court stated:
"[I]f you find that the defendant committed arson and that arson was the cause of the death . . . he is guilty of murder of the second degree. If you find that the defendant is not guilty of arson or if you find that he was guilty of arson but that the arson was not a cause of the death of the decedent, you should consider the ...