No. 172 January Term, 1977, Appeal from the Order of the Court of Common Pleas of Montgomery County at Criminal Division, No. 5567, October Term, 1975
John C. Bonner, McTighe, Mullaney, Weiss, Bonner, Stewart & O'Neill, Norristown, for appellant.
Eric J. Cox, Asst. Dist. Atty., Ross Weiss, 1st Asst. Dist. Atty., James A. Cunningham, Ronald T. Williamson, Asst. Dist. Attys., Norristown, for appellee.
Eagen, C. J., and O'Brien, Nix, Manderino and Larsen, JJ. Eagen, C. J., filed a dissenting opinion in which Larsen, J., joined. Roberts, J., and Pomeroy, former J., did not participate in the consideration or decision of this case.
This is an appeal from a judgment of sentence entered upon a jury verdict finding appellant guilty of murder of the
third degree.*fn1 See 18 Pa.C.S.A. § 2502(c) (Supp.1978-79). The dispositive issue before this Court is the propriety of the trial court's refusal to instruct the jury on the offense of involuntary manslaughter, id. § 2504 (1973), where the only homicide indictments were for murder and voluntary manslaughter. Because we conclude that the trial court erred in refusing to so instruct the jury, we reverse the judgment of sentence entered upon the third degree murder verdict and order a new trial.
The relevant facts are as follows: At the time of the incident, November 8, 1975, appellant was living with his parents in Norristown, Pennsylvania. Appellant awakened late on the morning of November 8th, and came downstairs from his bedroom. Appellant's father, George Warin, was repairing a plumbing problem in a downstairs bathroom, and upon seeing appellant, Mr. Warin began criticizing appellant for sleeping so late and not assisting Mr. Warin with household work. A heated argument between the two ensued during which Mr. Warin struck appellant three or four times in the face with the rod to which the toilet float was attached; these blows drew blood from appellant's face, and he retaliated by striking Mr. Warin with his fists. Mrs. Warin succeeded in breaking up the fight, and appellant went back up to his room. Mr. Warin went outside.
Three to five minutes later, appellant came downstairs again and went outside onto the driveway where Mr. Warin was unloading some materials from the trunk of his automobile. On his way through the breezeway, appellant picked up a metal rod. Appellant approached his father, and as Mr. Warin turned around, appellant struck him once on the right side of the head with the rod. Mr. Warin fell and apparently struck the back of his head on the driveway pavement. Mr. Warin was dead when police arrived a short time later. Medical testimony at trial indicated that Mr. Warin died
from a cerebral hemorrhage caused by two fractures to the skull, one at the back of the skull and one ...