Nos. 196 and 211 March Term, 1977, Appeal from Judgments of Sentence of the Court of Common Pleas of Blair County, Pennsylvania, Criminal Division, C.A. Nos. 338, 339 and 364 of 1976.
John Woodcock, Jr., Public Defender, Hollidaysburg, for appellant.
Thomas G. Peoples, Jr., Dist. Atty., Hollidaysburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, former J., did not participate in the decision of this case. O'Brien, J., did not participate in the consideration or decision of this case. Nix and Larsen, JJ., dissent believing that on this record the evidence establishes as a matter of law that the killing was not voluntary manslaughter, and therefore the "incorrect charge" was at best harmless error.
On October 28, 1976, after a jury trial, appellant was found guilty of murder of the third degree in connection with the death of Robert Hammel. Appellant was also found guilty on a separate information of aggravated assault, terroristic threats and recklessly endangering another for conduct directed at Hammel in the course of the killing.*fn1 On still another information, appellant was convicted of aggravated assault, recklessly endangering another and terroristic threats for conduct directed at Francis Zeth. Post-verdict motions were denied and an appeal was taken directly to this Court from the judgment of sentence for murder
of the third degree.*fn2 The appeal to the Superior Court of the judgments of sentence for all other offenses was consolidated in this appeal.*fn3
Appellant raises numerous grounds for relief. We find it necessary to consider only the contentions that the trial court erred in its instruction on voluntary manslaughter; that it erroneously refused to instruct the jury to acquit appellant on the charge of terroristic threats against Robert Hammel; that the court's instruction on intoxication was inadequate; and that the reading to the jury of informations containing a charge not supported by the evidence prejudiced appellant's case. We agree that the convictions of murder and terroristic threats against Robert Hammel may not stand. The convictions of the lesser offenses included in the crime of the murder of Robert Hammel must likewise fall. However, appellant has offered no basis for disturbing the remaining convictions for offenses directed against Francis Zeth, and as to those we affirm.*fn4
The testimony at trial reveals that on April 3, 1976, appellant was at home drinking beer, waiting for an unemployment check to arrive in the mail. When the check was not delivered, he placed a .22 caliber rifle in his car and drove to his parents' home. Offering the weapon as security, he sought to borrow money. His parents did not have the money, however, and appellant drove to a nearby bar where, without incident he remained from about 2:00 p. m. to 10:00 p. m.
At about 10:00 p. m., appellant was seated near two other patrons, Paul Glass and Francis Zeth. The testimony indicates that when Zeth left his table, appellant took Zeth's glass of beer, placed it on his own table and left momentarily. When Zeth returned, his companion Paul Glass told him what had happened. In appellant's absence, Zeth then retrieved the beer. The testimony reveals that appellant discovered this and instigated an argument which escalated into a fist fight with Zeth. Appellant was ordered to leave the bar, and on departing was heard to say to Zeth, "You're dead." Minutes later appellant reappeared in the doorway of the bar bearing the .22 caliber rifle. Robert Hammel, a friend of appellant who was not involved in the earlier fight, approached him. Appellant fired, fatally wounding Hammel in the abdomen. Soon thereafter appellant fled the bar, and was later arrested at another bar near his home. At ...