decided: July 5, 1979.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
SAMUEL J. SCARAMUZZINO, APPELLEE
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.
[ 485 Pa. Page 515]
OPINION OF THE COURT
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.
[ 485 Pa. Page 516]
"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 of any testimony which would warrant such a finding. But you have the right to bring in such a verdict if you so find and if you so desire.
"Now, you take the law from me as I give it to you, and then you apply it to the facts as you find them.
"When we talk about passion, this includes such emotions as anger, rage, sudden resentment, terror, or unreasonable fear. I told you that I heard no defense which supports the finding of voluntary manslaughter. But I also told you that this is a permissible verdict no matter what I say, and I suggest to you it's still one of the permissible verdicts. If it wouldn't have been a permissible verdict, I wouldn't have submitted it to you. The fact
[ 485 Pa. Page 517]
that it was submitted to you means that it is a permissible verdict.
"Again, murder of the first degree is a willful, deliberate, and premeditated killing. Second degree: there is no intention to kill. And in voluntary manslaughter there is an intent to kill, but there is an adequate legal provocation. This is the feature of this definition that gives me pause in this case. I've heard of no legal provocation."
Essentially, the court reasoned the charge as given constituted an impermissible invasion of the jury's function by the trial judge in that it constituted a directive to the jury to "steer away from a voluntary manslaughter verdict." While the reasoning of the court in light of the charge given is not precisely accurate, this undoubtedly resulted from reliance on the reasoning of the plurality opinion in Commonwealth v. McNeill, 462 Pa. 438, 341 A.2d 463 (1975), and from uncertainty in the law which existed when the court filed its opinion. The law has since been clarified by a majority of this Court and, accordingly, we shall restate it.
In Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977), we outlined various principles. First, a trial court must give a voluntary manslaughter charge upon request where an accused is charged with murder. Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974) (opinion in support of affirmance). Second, the court's charge may include a statement of opinion that insufficient evidence exists to support a voluntary manslaughter charge if, in fact, the evidence is insufficient,*fn3 and if two principal conditions are met, namely:
[ 485 Pa. Page 518]
"(1) the trial court must fully inform the jury of its 'power' to return a verdict of voluntary manslaughter, whether supported by the evidence or not; and (2) the court must also instruct the jury that it is not bound by the court's comments concerning the evidence because it is the jury which is the sole finder of the facts."
Commonwealth v. Bennett, supra, 471 Pa. at 427, 370 A.2d at 377.*fn4 Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977) (plurality opinion); Commonwealth v. McClendon, supra; Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974). Cf. Commonwealth v. Goins, supra.
Fairly read, the charge instantly did inform the jury it was the sole finder of fact, but did not inform the jury that voluntary manslaughter could be returned whether or not the evidence would support that verdict.*fn5
ROBERTS, Justice, concurring.
I agree that appellant's entitlement to a new trial is clearly established by this record and the trial court's grant of a new trial must be affirmed. See Commonwealth v. Bennett, 471 Pa. 419, 428, 370 A.2d 373, 378 (1977) (Roberts, J., joined by Manderino, J., dissenting).
[ 485 Pa. Page 519]
LARSEN, Justice, dissenting.
I dissent; the trial judge's charge was more than adequate. I would, therefore, reverse.