No. 140 March Term, 1976, No. 3 March Term, 1977, Appeals from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at Nos. CC7502887 and CC7503357
Stanton D. Levenson, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion in which O'Brien, J., joins. Nix, J., filed a concurring opinion. Manderino, J., filed a concurring opinion.
Richard Alexander was shot to death and O'Dell Watson wounded by gunfire in a fracas which took place in Pittsburgh on April 4, 1975. Appellant Charles Francis Terrell was arrested as the culprit and was charged, inter alia, with murder, voluntary manslaughter and involuntary manslaughter in connection with the death of Alexander.*fn1 After a jury had been selected but prior to the presentation of evidence, the Commonwealth moved to nolle prosequi the involuntary manslaughter count, and the motion was granted over appellant's objection. The jury found Terrell guilty of voluntary manslaughter and several other charges, and acquitted him of aggravated assault. Post-trial motions were filed and denied, and judgments of sentence entered.*fn2
These appeals followed.*fn3
The sole question presented in this case is whether the trial court erred in refusing appellant's timely request for an instruction on involuntary manslaughter. We answer in the affirmative.
It is now settled law in this Commonwealth that in prosecutions for criminal homicide under the Crimes Code*fn4 a defendant has the right upon request to an instruction on involuntary manslaughter at least when there is evidence that would rationally sustain such a verdict. Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) (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). See also Commonwealth v. Dussinger, 478 Pa. 182, 194, 386 A.2d 500, 506 (1978) (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).*fn5 Resolution of this question thus turns on whether the evidence presented to the jury would have justified a verdict of involuntary manslaughter; the absence of an indictment for involuntary manslaughter is not, by itself, controlling. Commonwealth v. Ford, supra, 474 Pa. at 485, 378 A.2d at 1218.
The Commonwealth's evidence, as accurately summarized in the opinion of the trial judge denying post-trial
motions,*fn6 was clearly sufficient to warrant the jury's verdict. E. g., Commonwealth v. Kramer, 474 Pa. 341, 345, 378 A.2d 824 (1977); Commonwealth v. Hoffman, 439 Pa. 348, 356-59, 266 A.2d 726 (1970). But in assessing the question of whether an involuntary manslaughter instruction should have been given, we must view the evidence in the light most favorable to the defendant. Commonwealth v. Polimeni, supra, 474 Pa. at 443, 378 A.2d at 1196; Commonwealth v. Moore, 463 Pa. 317, 321-22, 344 A.2d 850, 852 (1975). The following is a fair summary of a portion of appellant's testimony:
Terrell and Alexander, who were friends, were playing cards at another person's apartment when appellant accused Alexander of cheating. Alexander thereupon scooped up the money on the table and left the apartment. A short time later in the early evening Terrell, who was unarmed, left the apartment and found Alexander inside a jitney station. Terrell asked to talk with Alexander, and at the latter's suggestion they both went outside. An argument ...