Nos. 7 and 780 January Term, 1977, Appeals from Judgments of Sentence of the Court of Common Pleas, Criminal, of Philadelphia at Nos. 1174 and 1175 April Term, 1975
F. Emmet Ciccone, Philadelphia, for appellant.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Gaile McLaughlin Barthold, Asst. Dist. Attys., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Pomeroy, J., took no part in the consideration or decision of this case. Nix and Manderino, JJ., concur in the result.
Appellant, Harvey G. Jarvis, was convicted by a jury of voluntary manslaughter and a weapons violation. Post-verdict motions were denied and appellant was sentenced to one to ten years' imprisonment for the voluntary manslaughter conviction, with a consecutive probationary term of five years for the weapons violation. This direct appeal followed.*fn1
The facts are as follows. On March 8, 1975, appellant was tending bar at Ed and Mickey's Chaise Lounge Bar in North Philadelphia. At various times during the day, the victim,
Ernest Harville, had been in the bar arguing with appellant about Selena Harris, who evidently had been seeing both men. During these arguments, the victim told appellant, "Either you're going to kill me or I'm sure as hell going to kill you."
At approximately 11:00 p. m., appellant received a phone call from Ms. Harris telling him that Harville had been to her apartment with a gun stating that he was going to kill appellant. After receiving this call, appellant took a gun from behind the bar and placed it in his back pocket.
Shortly thereafter, the victim arrived at the bar, but various patrons prevented him from entering. At that time, Ms. Harris called the bar and asked to speak with the victim. Harville was allowed to enter the bar and went into a phone booth.
Since the victim appeared to have calmed down upon entering the bar, appellant approached the phone booth. As he approached the booth, he heard the victim state, "Here comes [Jarvis] now. I'm going to blow his . . . brains out." Because appellant thought that the victim was reaching for a gun, he pulled his own weapon and shot the victim three times. The victim died as a result of these wounds.
Appellant first alleges that the trial court erred when it failed to instruct the jury on involuntary manslaughter. We do not agree with appellant for two reasons. The facts are as follows.
When appellant was indicted, he was charged with murder, voluntary manslaughter, involuntary manslaughter and various weapons offenses. At the commencement of trial, appellant's counsel requested that the involuntary manslaughter indictment be consolidated with the other charges, "As I [defense counsel] intend to ask for a charge on involuntary manslaughter at the end of trial." The trial court, however, refused the motion for consolidation. Subsequently, appellant never requested that the trial court instruct the jury on involuntary manslaughter. Under these circumstances, we believe this claim has been waived.
Pa.R.Crim.P. 1119 provides:
"(a) Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. The trial judge shall charge the jury after the arguments are completed, and shall then rule on all written requests.
"(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury." (Emphasis added.)
As appellant neither submitted a written request for an involuntary manslaughter instruction nor objected to the court's failure to so charge, we believe this claim has been waived.*fn2
Appellant cites Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975) [opinion of the court by Justice (now Chief Justice) Eagen and by Justice O'Brien], to buttress his position that the court erred in not charging on involuntary manslaughter. There, we held that where evidence existed which would support a finding of involuntary manslaughter, it was error to refuse a motion to consolidate an involuntary manslaughter indictment with the other charges. In Moore, however, the defendant, in addition to requesting consolidation, specifically requested that the court charge the jury that involuntary manslaughter was a permissible verdict. In the instant case, no such request accompanied ...