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filed: December 21, 1979.


No. 212 Special Transfer Docket, Appeal from the Judgment of Sentence Imposed on February 2, 1978 in the Court of Common Pleas of Philadelphia County on Bill of Indictment Numbered 1996 of the May Term of 1977.


Norris E. Gelman, Philadelphia, for appellant.

Franklin E. Noel, Assistant District Attorney, for Commonwealth, appellee.

Watkins, Manderino and Cirillo, JJ.*fn* Manderino, J., concurs in the result. This decision was reached prior to the death of Manderino, J.

Author: Watkins

[ 273 Pa. Super. Page 90]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, by defendant-appellant after his conviction by a jury of voluntary manslaughter.

The victim was shot inside a Philadelphia bar on April 30, 1977, and died of a gunshot wound to the left side of the chest. At trial two Commonwealth witnesses testified that the defendant and the victim were arguing outside the bar and that the victim had been pushed by the defendant whereupon the victim ran inside the bar. The defendant then pursued the victim inside the barroom and once inside fired the gun which killed the victim, after attempting to fire at the victim during the chase. Defendant was arrested in Georgia on May 5, 1977 by Georgia police. Upon being arrested and given the Miranda warnings, he told police that he had shot the victim during a struggle for the gun and that it was the victim who originally had the gun. At trial, the Commonwealth produced an expert witness who testified that the firing of the gun was not from close range thereby contradicting the defendant's version of the incident to the effect that the gun went off during the struggle. Defendant was sentenced on February 2, 1978 to five to ten years in prison.

Defendant's first allegation of error was that the trial court abused its discretion by permitting the Commonwealth to death qualify the jury when it was obvious that no aggravating circumstances were involved in the trial so as to

[ 273 Pa. Super. Page 91]

    justify treating the case as a potential capital case. He argues that the Commonwealth's death qualifying the jury denied defendant a jury composed of a "fair cross-section of the community." In capital cases potential jurors who are opposed to the death penalty under any circumstances at all may be excluded from the jury. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Defendant argues that the instant case was not even arguably one which could be classified as a capital case and asserts that the Commonwealth merely used the death qualifying procedure in order to obtain a "conviction oriented" jury. However, the jury makes the initial determination of whether "aggravating circumstances" exist so as to raise the case to the level of a capital one. Commonwealth ex rel. Fitzpatrick v. Bullock, 471 Pa. 292, 370 A.2d 309 (1977).

In the instant case defendant had been charged with first degree murder. Until the trial testimony was completed it was not certain as to whether the killing would rise to the level of first degree murder and Bullock, supra, appears to have finally resolved the matter in the Commonwealth's favor. That case specifically denied trial courts the right to make any pre-trial investigation as to whether any "aggravating circumstances" exist in a murder case. Defendant claims that the Commonwealth should be charged with the responsibility of knowing whether aggravating circumstances exist. However, witnesses' trial testimony often differs from the statements they give prior to trial and it is often impossible for anyone to know prior to trial what testimony will be adduced at the trial. For example, 18 P.C.S.A. 1311(d)(7) provides that where a defendant knowingly creates a grave risk of death to another person in addition to the victim of the offense during the commission of the offense that an "aggravating circumstance" exists. Whether such a situation occurred during a murder is solely for the jury's determination and may only be determined from the facts of each specific case presented during the trial of that case. The fact that the jury did not find defendant guilty of first degree murder does not change the fact that it might

[ 273 Pa. Super. Page 92]

    have done so had it felt that sufficient evidence of aggravating circumstances had ...

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