No. 93 January Term 1977, Appeal from the Order of the Court of Common Pleas of Lebanon County at No. 240, 1971
George E. Christianson, Dist. Atty., Frederick S. Wolfson, Asst. Dist. Atty., Harry W. Reed, Jr., Lebanon, for appellant.
Joseph Michael Farrell, Harrisburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, and Larsen, JJ. Roberts, J., filed a concurring opinion in which Manderino, J., joins. Larsen, J., filed a dissenting opinion.
Samuel J. Scaramuzzino was convicted by a jury in the Court of Common Pleas of Lebanon County of murder of the second degree.*fn1 Post-verdict motions were filed, and a new trial was granted. The Commonwealth appeals from the order granting a new trial.*fn2
The court granted the new trial as a result of its determination that the trial judge erred in charging the jury. The specific portions of the charge on which that determination was made are:
"The defendant has requested me, too, to charge you on voluntary manslaughter.
"Now, as I told you, I've been requested to charge you on voluntary manslaughter. Voluntary manslaughter occurs when there is an intentional killing in the sudden heat of passion brought about by an adequate legal provocation and before sufficient time has elapsed for the blood to cool and reason to reassume the control of the action of the person committing the offense, the act. An unreasonable fear of danger or serious bodily harm could constitute voluntary manslaughter, even if there was no direct and specific intent to kill. But by 'passion' we mean emotions such as anger, rage, sudden resentment, terror, or unreasonable fear.
"I have heard no evidence in this case of an intentional killing on the part of the defendant, that would reduce this offense, if there was an offense committed by the defendant, to voluntary manslaughter. But since it is one of the degrees permissible on a charge of murder for which a jury could find a verdict of guilty, the matter is in your hands to decide. And you must decide whether there was evidence on which you could find a verdict of voluntary manslaughter. It's not for me to tell you. I'm only pointing out that I have no recollection ...