Nos. 27 and 56 March Term, 1977, Appeals from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at Nos. CC7507686, CC7507687, and 7508730
Lester G. Nauhaus, Paulette Balogh, Asst. Public Defenders, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Jacqueline M. Verney, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Pomeroy, J., files an opinion in support of affirmance in which Eagen, C. J., joins. Nix, J., files an opinion in support of affirmance. Roberts, J., files an opinion in support of reversal in which O'Brien, J., joins. Manderino, J., files an opinion in support of reversal. Packel, Former J., did not participate in the decision of this case.
This Court is unanimously of the view that the judgment of sentence at No. 56 March Term, 1977, for aggravated assault, should be affirmed.
As to the involuntary manslaughter convictions appealed to No. 27 March Term, 1977, the six members of this Court who have participated in the consideration and decision of this case are equally divided. Mr. Chief Justice EAGEN, Mr. Justice POMEROY and Mr. Justice NIX would affirm the judgments of sentence. Mr. Justice O'BRIEN, Mr. Justice ROBERTS and Mr. Justice MANDERINO would reverse the judgments of sentence and award a new trial. The Court being equally divided, the judgments of sentence at No. 27 March Term, 1977, are also affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
The principal questions in this case are whether there was evidence in the record that would rationally sustain a verdict of involuntary manslaughter and, if not, whether the trial court was required nevertheless to give an involuntary manslaughter instruction to the jury upon the defendant's timely request. For the reasons that follow, I would answer both questions in the negative and affirm all the judgments of sentence.
Joseph Solomon, Arkinzie Solomon, and Leslie Watson were all shot in the chest during a fight in Pittsburgh on September 27, 1975. Arkinzie Solomon and Watson died of their wounds, while Joseph Solomon recovered. Appellant Darryell Thomas was charged, inter alia, with two counts
each of murder and voluntary manslaughter and one count of aggravated assault in connection with the incident and was found guilty by a jury of two counts of voluntary manslaughter and aggravated assault.*fn1 Post-trial motions were filed and denied, and judgments of sentence entered. These appeals followed.*fn2
It is now settled in prosecutions for criminal homicide under this Commonwealth's Crimes Code*fn3 that a defendant has the right upon request to an instruction on involuntary manslaughter at least where there is evidence that would rationally sustain such a verdict. Commonwealth v. Terrell, 482 Pa. 303, 393 A.2d 1117 (1978) (opinion announcing the judgment of the Court); Commonwealth v. Ford, 474 Pa. 480, 378 A.2d 1215 (1977) (opinion announcing the judgment of the Court); Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) (opinion announcing the judgment of the Court). As the lead opinion in Polimeni stated:
"We thus hold . . . 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." 474 Pa. at 442, 378 A.2d at 1196 (footnote omitted).
See also Commonwealth v. Dussinger, 478 Pa. 182, 194, 386 A.2d 500, 506 (plurality opinion); Commonwealth v. Gartner, 475 Pa. 512, 521, 381 A.2d 114 (1977) (plurality opinion); Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (plurality opinion).*fn4 A review of the evidence is thus necessary.
The Commonwealth's evidence showed that Thomas and Joseph Solomon became involved in a fight in a tavern and were ordered to leave by the bartender. Thomas left the bar, followed by Joseph Solomon, his brother Arkinzie Solomon, and others. Kenny Jones, an eyewitness, testified that appellant swung at Joseph Solomon but was unable to land a blow, and that Joseph Solomon then hit Thomas and knocked him to the ground. Appellant then got up, ran across the street to an empty lot, and fired four or five times from about twenty feet away as Joseph Solomon began to advance toward him. Joseph Solomon's testimony was somewhat different. He stated that when he and his brother left the bar, appellant, who was standing on the sidewalk some six feet away, turned around, threw open his coat and started shooting. Joseph Solomon further testified that he was hit twice, once in the chest and once in the belt ...