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decided: August 27, 1979.


Nos. 301 January Term, 1977 and 260 January Term, 1979, Appeals from the judgments of Sentence of the Court of Common Pleas, Criminal, of Philadelphia, at Nos. 974 and 975 January Sessions, 1976


David Zwanetz, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., James Garrett, Asst. Dist. Atty., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Eagen, C. J., and Nix, J., concur in the result. Roberts, J., files a dissenting opinion in which Manderino, J., joins.

Author: O'brien

[ 486 Pa. Page 214]


Appellant, Arthur Pitts, was tried by a judge sitting with a jury for the homicide of Edward Carter on December 23, 1975. The jury found appellant guilty of murder of the third degree and possessing instruments of crime. Post-verdict motions were denied and appellant was sentenced to ten to twenty years in prison for the conviction of murder of the third degree and two and one-half to five years on the instruments of crime conviction, both sentences to be concurrent. This appeal followed.*fn1

Appellant first argues the evidence is insufficient as a matter of law to sustain his conviction for murder of the third degree. This argument centers on appellant's belief the jury should have accepted defense testimony of voluntary intoxication, rather than the Commonwealth's evidence.

The facts surrounding this issue are as follows. On December 23, 1975, appellant and decedent, Edward Carter, were drinking alcoholic beverages during the day. The testimony indicates a quantity of wine and large quantities of whiskey were consumed by appellant, decedent and a mutual friend, "Mr. Lumpkin." At approximately 6:00 p. m., Roberta Johnson, decedent's paramour, helped decedent upstairs to the bedroom. Johnson's assistance was necessary as Carter was intoxicated. Both Carter and Johnson lie on the bed, Johnson watching television and Carter sleeping. Appellant entered the room, attempted to wake up Carter,

[ 486 Pa. Page 215]

    and complained that Carter was involved with "his woman." During this argument, Johnson left the bedroom, but asked Lumpkin to go up to the bedroom to watch decedent and appellant. Upon her return to the bedroom, Johnson was asked by Lumpkin to call the police. She entered the room and saw Carter on the couch. He had sustained stab wounds of the stomach and leg, which caused his death.*fn2 As Johnson went to the house next door to call police, she noticed appellant leaving the house where the stabbing had occurred. She saw him drop a kitchen knife and then retrieve it. Subsequently, when the police arrived at the scene of the Carter slaying appellant returned to the house and attempted to conceal the knife in a flower pot. The knife was found by the police and it was later determined the knife had human blood on it. Appellant was then arrested. The arresting and interrogating officers both testified that although appellant's breath did smell of alcohol, his reflexes and ability to understand and discuss events surrounding the stabbing appeared unimpaired.

In Commonwealth v. Firth, 479 Pa. 333, 388 A.2d 683 (1978), this court reiterated the standard of appellate review in judging the sufficiency of the evidence:

"In Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-826 (1975), we stated:

"'The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. . . . Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. . . . The fact-finder is free to believe all, part, or none of the evidence. . . .'"

[ 486 Pa. Page 216]

A review of the Commonwealth's evidence reveals that evidence to be sufficient, if it is believed. The factfinder can believe all, part or none of the testimony.

Appellant next argues that the court below erred in failing to instruct the jury on the relationship of voluntary intoxication to the intent element of voluntary manslaughter.

The trial court charged:

"In the event you should be persuaded to entertain the question of finding the defendant guilty of only voluntary manslaughter, whether he might have been intoxicated would then be no part whatever of your reasoning, and you must as to that determination dismiss all evidence of his intoxication from your consideration." (N.T. 434).

The relevant statute, in effect at the time of this crime, stated:

"Intoxication or drugged condition are not, as such, defenses to a criminal charge; but in any prosecution for any offense, evidence of intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to negative an element of the offense." Act of December 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973. 18 Pa.C.S.A. § 308.*fn3

Section 308 makes clear that evidence of intoxication is relevant and admissible to negate an element of a crime.

This court, in Commonwealth v. Graves, 461 Pa. 118, 122-23, 334 A.2d 661 (1975), stated:*fn4

"The only permissible probative value evidence of intoxication may have in criminal proceedings is where it is

[ 486 Pa. Page 217]

    relevant to the question of the capacity of the actor to have possessed the requisite intent of the crime charged. Where the legislature, in its definition of a crime, has designated a particular state of mind as a material element of the crime, evidence of intoxication becomes relevant if the degree of inebriation has reached that point where the mind was incapable of attaining the state of mind required. It must be emphasized that although evidence of intoxication never provides a basis for exoneration or excuse, it may in some instances be relevant to establish that the crime charged in fact did not occur.*fn3a

"Rejecting the view that an evidentiary rule relating to the introduction of evidence of intoxication must be strictly construed to avoid condoning voluntarily induced intoxication, most text writers have recognized the issue as being whether the crime in fact has been committed and considered the question accordingly:

"'Where a particular purpose, motive or intent is a necessary element to constitute the particular kind or degree of crime, it is proper to consider the mental condition of accused, although produced by voluntary intoxication, and, where he lacked the mental capacity to entertain the requisite purpose, motive, or intent, such incapacity may constitute a valid defense to the particular crime charged, and the same rule applies to voluntary intoxication resulting in mental incapacity to indulge premeditation or deliberation, which precludes conviction of an offense wherein premeditation is essential . . . .

[ 486 Pa. Page 218]

"'The majority rule, holding intoxication to an extent precluding capacity to entertain a specific intent or to premeditate to be a defense, does so not because drunkenness excuses crime, but because, if the mental status required by law to constitute crime be one of specific intent or of deliberation and premeditation, and drunkenness excludes the existence of such mental state, then the particular crime charged has not in fact been committed.

"'Where a specific intent is an ingredient of the crime charged, the fact that that accused's drunkenness is voluntary does not render the defense of intoxication incompetent, since the intent to become intoxicated does not tend to prove an intent to commit the offense.' (Footnotes omitted.) 22 C.J.S. Criminal Law § 68, pp. 217-219."

In Commonwealth v. Mason, 474 Pa. 308, 378 A.2d 807 (1977), this court stated:

"The trial court's refusal to charge the jury concerning the element of intent necessary to convict of voluntary manslaughter was error. The term 'voluntary manslaughter' contemplates an intentional or voluntary (emphasis in original) act on the part of the defendant. In Commonwealth v. Moore, 398 Pa. 198, 202 n. 2, 157 A.2d 65, 68 n. 2 (1959), the Court stated 'that where there is a nonmalicious felonious killing with a specific intent either to kill or to seriously injure, it is voluntary manslaughter.' (Emphasis added.) In Commonwealth v. Campbell, 451 Pa. 465, 468, 304 A.2d 121, 122 (1973), the court again speaking of voluntary manslaughter stated 'that it is an intentional killing (emphasis added in Mason) which is perpetrated while under the influence of overriding passion, . . .' In Commonwealth v. Butcher, 451 Pa. 359, 364, 304 A.2d 150, 153 (1973), this Court indicated that a necessary element of both murder in the first degree and voluntary manslaughter is the specific intent to kill." (Emphasis in original.)

In light of Commonwealth v. Mason, and the then applicable § 308 of the Crimes Code, the trial court erred in failing to charge the jury on the relationship of voluntary

[ 486 Pa. Page 219]

    intoxication and the specific intent requirement of voluntary manslaughter. However, the Commonwealth argues the error was harmless beyond a reasonable doubt. We agree.

The jury in the instant case found appellant guilty of murder of the third degree. Murder of the third degree is a killing done with legal malice but without specific intent to kill. Murder of the third degree can, however, in some cases involve the specific intent to harm a victim as long as said intent falls short of the specific intent to kill. Voluntary manslaughter, on the other hand, involves the specific intent to kill but, by reason of passion and provocation, contains no legal malice.

In the instant case, appellant was found guilty of murder of the third degree. The jury thus found appellant had no specific intent to kill the victim. By such a finding, the jury found voluntary manslaughter was not applicable to this case. The error in the instant case could not harm appellant, unless he was convicted of voluntary manslaughter, for only then would the issue of intoxication become relevant. We thus agree with the Commonwealth that the error was harmless beyond a reasonable doubt.

Appellant's third argument is that the district attorney misstated the law, thereby depriving him of a fair trial. The district attorney, in his closing, stated:

". . . drinking, perhaps, all day, but, ladies and gentlemen, the Commonwealth also submits -- and of course the Judge will give you the law; this is just the Commonwealth's submission to you -- that intoxication is not a defense to third degree murder or to voluntary manslaughter; that voluntary intoxication is no defense to the events or to the incident with which the defendant is charged in this case.

" If you believe, for example, that the defendant after drinking all day -- if you believe that he drank what he says he drank --

"MR. ZWANETZ: Your Honor, objection. The objection is to the statement of law, as not coming from the Court.

[ 486 Pa. Page 220]

"THE COURT: He is free to comment on the law. The jury will take the law as the Court instructs them, but counsel are free to discuss the law. As to the facts, the jury determines what the facts are.

"I will overrule your objection."

Counsel did not contest the correctness of the statement at trial. Counsel only objected to the statement of law by the district attorney. On appeal, appellant now attempts to argue that the statements were erroneous.

". . . It has long been the rule in this jurisdiction that if the ground upon which an objection is based is specifically stated, all other reasons for its exclusion are waived, and may not be raised post trial. Commonwealth v. McNeal, 456 Pa. 394, 398, 319 A.2d 669 (1974); Commonwealth v. Budd, 443 Pa. 193, 195, 278 A.2d 879 (1971); Commonwealth v. Raymond, 412 Pa. 194, 202-203, 194 A.2d 150 (1963)." Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975).

Judgments of sentence affirmed.

ROBERTS, Justice, dissenting.

The trial court's instruction on voluntary manslaughter erroneously precluded the jury from even considering evidence of appellant's intoxication. The majority holds that this instruction misstated the law but nevertheless denies relief on the spurious theory that because appellant was convicted of murder of the third degree the trial court's error was harmless beyond a reasonable doubt. I dissent.

The trial court instructed the jury that as to the charge of involuntary manslaughter evidence of appellant's intoxication "would be no party [sic] whatever of your reasoning, and you must as to that determination dismiss all evidence of his intoxication from your consideration." This erroneous instruction incorrectly and improperly circumscribed the

[ 486 Pa. Page 221]

    jury's consideration. That the jury returned a verdict of murder of the third degree in no way lessens the possibility that the court's error diverted the jury from a verdict of voluntary manslaughter. But for the trial court's error, the jury might have found that the intoxication evidence justified a compromise verdict of voluntary manslaughter even if the jury believed that evidence insufficient to justify acquittal.

Appellant clearly was entitled to a charge on voluntary manslaughter which correctly and completely expressed the law. E. g., Commonwealth v. Musselman, 483 Pa. 245, 396 A.2d 625 (1979). Having found the trial court's instructions on voluntary manslaughter to be defective, this Court may not overlook a recognized possibility of harm which could arise from that error. The trial court's acknowledged error in this case was far from harmless beyond a reasonable doubt. I would reverse and remand for a new trial.

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