No. 303 Special Transfer Docket Appeal by the Commonwealth from the Order of the Court of Common Pleas of Bucks County granting appellee's Motion for a New Trial at No. 3111 of 1976 Sessions.
Stephen Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellant.
Peter S. Thompson, Doylestown, for appellee.
Hoffman, Eagen and Hess, JJ.*fn*
[ 273 Pa. Super. Page 345]
On this appeal of the post-verdict court's grant of a new trial to appellee, the Commonwealth, as appellant, contends that: (1) appellee waived his right to challenge the trial court's failure to instruct the jury on involuntary manslaughter;
[ 273 Pa. Super. Page 346]
(2) recent decisions of our Supreme Court requiring trial courts to instruct on involuntary manslaughter are inapplicable to the present case, and; (3) because there was no evidence to justify a jury finding of involuntary manslaughter, the post-verdict court erred in holding that the trial court was required to instruct the jury on involuntary manslaughter. Because we disagree with all of the Commonwealth's contentions, we affirm the order of the post-verdict court granting appellee a new trial.
Appellee James Marshall was charged with first and second degree murder in the shooting death of William Franklin in October, 1976. On March 18, 1977, after a jury trial, appellee was convicted of voluntary manslaughter. At trial, after both sides had rested, but before closing argument, the following exchange took place between counsel for appellee and the court:
"MR. WAITE [counsel for appellee]: Except that, your Honor, I do believe that when it comes time for the charge that I would ask that you charge on involuntary manslaughter.
"MR. WAITE: Involuntary manslaughter.
"THE COURT: No, I won't charge on that. I will tell you that right now. There is nothing in this case -- in the first place, he is not indicted for involuntary manslaughter. The only case I know of is in a consolidated case ...