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February 25, 1980

JOHN EDWARD BISHOP, P2541, Petitioner,

The opinion of the court was delivered by: COHILL



 On June 3, 1976, a jury in the Court of Common Pleas of Clearfield County, Pennsylvania rejected the argument of self-defense of defendant, John Edward Bishop (petitioner herein), and convicted him of voluntary manslaughter in the slaying of Franklin Albright. Bishop had claimed that on December 5, 1975, he and Franklin Albright were sitting in Bishop's home drinking beer. Albright then exposed himself and insisted that Bishop engage in oral sex with him. Bishop refused, but Albright persisted in his demand. Bishop then became frightened, went into his bedroom, loaded a shotgun and returned to confront Albright, who stood about six feet tall. Bishop pointed the shotgun at Albright, and ordered him to leave the house. Instead of leaving, Albright charged the petitioner with penis still exposed. Bishop fired, killing Albright.

  The trial judge instructed the jury on first-degree murder, third-degree murder and voluntary manslaughter, but he refused the defendant's request to give an instruction on involuntary manslaughter. On appeal from his conviction, Bishop cited as error the failure of the trial judge to instruct the jury on involuntary manslaughter. In Commonwealth v. Bishop, 483 Pa. 401, 397 A.2d 405 (1979), a divided Pennsylvania Supreme Court affirmed the conviction without opinion by a three to two vote.

 Bishop has now launched a collateral attack on his conviction through a petition for writ of habeas corpus. A United States District Court may grant such a writ "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (1976). For example, in Hallowell v. Keve, 555 F.2d 103, 106 (3d Cir. 1977), the Third Circuit stated that a jury instruction given in a State trial is reviewable by a federal court on collateral attack where that instruction violates specific federal constitutional standards imposed on the States through the due process clause of the Fourteenth Amendment. In a thoughtful report, United States Magistrate Robert Mitchell recommended that this Court issue the writ in the instant case. We accept the magistrate's recommendation, although we base our decision on a somewhat different analysis.


 Lesser Included Offense

 In Pennsylvania, a person commits involuntary manslaughter "when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person." 18 Pa.Cons.Stat.Ann. § 2504(a) (Purdon's 1973). The Pennsylvania Supreme Court fleshed out this statutory definition in Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975):


Involuntary manslaughter, which differs from murder in that specific intent and malice are absent, encompasses, "the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty." Commonwealth v. Mayberry, 290 Pa. 195, 198, 138 A. 686, 687 (1927).

 463 Pa. at 322, 344 A.2d at 853. The traditional definition of involuntary manslaughter corresponds very closely to the one set forth in Moore :


Involuntary manslaughter is an unintentional homicide without malice aforethought for which the law places responsibility on the defendant because he is guilty of an unlawful act or omission of a nature which is not so wrong as to make the defendant liable for murder, nor so harmless as to make him not responsible. Specifically, the defendant is guilty of involuntary manslaughter if death was caused by some accident occurring while he committed a nonfelonious act which is malum in se but having no natural tendency to cause death or serious bodily harm, or as the result of the defendant's culpable negligence, either in doing an act, or in omitting to do an act required by law.

 R. Anderson, 1 Wharton's Criminal Law and Procedure § 272, at 577-78 (1966) (footnotes omitted). Based on the foregoing, we must say that distilled to its essence, involuntary manslaughter is an unintentional killing caused by reckless behavior.

 Pennsylvania courts have held that involuntary manslaughter is a lesser included offense of murder. See Commonwealth v. Garcia, 474 Pa. 449, 460-65, 378 A.2d 1199, 1205-08 (1977); Commonwealth v. Myers, 266 Pa.Super. 566, 405 A.2d 1252, 1254 (1979). These courts arrived at this decision by interpreting 18 Pa.Cons.Stat.Ann. § 2501(b) (Purdon's 1973), which states that "[criminal] homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter."

  The Constitution of the United States does not require a trial judge to instruct the jury in every case on all lesser included offenses. Federal courts often have addressed this issue in the context of bank robbery prosecutions. The federal bank robbery statute creates three separate offenses: robbing a bank while putting life in jeopardy through the use of a deadly weapon, 18 U.S.C. § 2113(d) (1976); robbing a bank by force or intimidation, 18 U.S.C. § 2113(a) (1976); and taking bank property with the intent to steal, 18 U.S.C. § 2113(b) (1976). If uncontradicted evidence establishes that the bank robbers used force or intimidation, the trial judge should not instruct the jury on section 2113(b). See United States v. Richardson, 562 F.2d 476, 480-81 (7th Cir. 1977), cert. denied, 434 U.S. 1072, 98 S. Ct. 1257, 55 L. Ed. 2d 776 (1978). Similarly, in United States v. Callison, 577 F.2d 53 (8th Cir.), cert. denied, 439 U.S. 873, 99 S. Ct. 209, 58 L. Ed. 2d 187 (1978), the Eighth Circuit found no error in a trial judge's refusal to instruct the jury on section 2113(a). The appellate court explained that


(t)here was no dispute in the proof on the element of assault the Government's evidence showed that the robbery was conducted with firearms and that threats to kill were made; defendant testified he did not participate in the robbery at all. Thus there was nothing from which the jury could conclude that defendant robbed the bank but did so without committing an assault or placing lives in jeopardy.

 577 F.2d at 56.

 The Third Circuit also has accepted the proposition that a trial judge does not necessarily have to instruct on all lesser included offenses. In Hallowell v. Keve, 555 F.2d 103 (3d Cir. 1977), a Delaware prisoner brought an application for a writ of habeas corpus following his conviction by a jury for second-degree murder. The petitioner argued that the trial judge had violated his constitutional rights by refusing to instruct the jury on involuntary manslaughter. The Third Circuit noted that as a matter of Delaware state law,


involuntary manslaughter is the unintentional "killing of another without malice while engaged in the doing of an unlawful act, not in itself felonious or tending to do great bodily harm." Appellant's own testimony demonstrates that he was engaged in an unlawful act, i. e., taking a "swipe" at the victim with a knife, in itself tending to great bodily harm.

 555 F.2d at 106 (citation and footnotes omitted) (emphasis in original). The court therefore affirmed the dismissal of the petition because the petitioner's "own testimony precluded the charge he requested." Id. at 108. The Third Circuit concluded that "(n)either due process nor any other constitutional guarantee is offended by a trial judge's refusal to charge the jury on a matter not presented by the evidence." Id. at 107.

 No evidence presented at John Bishop's trial would support a jury verdict of involuntary manslaughter. Bishop did not argue that the gun had discharged accidently or that he had pointed it away from the decedent; rather, he contended that he had shot Franklin Albright in self-defense. The defendant himself testified that he had loaded the weapon, aimed it at Albright, and pulled the trigger. Based on such evidence, a jury could not rationally find that the defendant had unintentionally shot the decedent. See Commonwealth v. Thomas, 482 Pa. 312, 319-21, 393 A.2d 1122, 1125-26 (1978) (Opinion in Support of Affirmance, Pomeroy, J.) (firing at onrushing attacker can establish self-defense or voluntary manslaughter, but not involuntary manslaughter). Cf. Commonwealth v. Myers, 266 Pa.Super. 566, 405 A.2d 1252, 1255-56 (1979) (evidence that defendant fired high-powered rifle at sign across frequently travelled road supports conviction for involuntary manslaughter). To characterize Bishop's actions as "reckless" would distort that term beyond recognition.

 When no evidence exists to support a finding that the defendant acted unintentionally, a judge does not usurp the function of the jury when he, in effect, directs a verdict on the issue by refusing to give an involuntary manslaughter instruction. "It is the province of the jury to weigh the evidence, and the jury is entitled to believe all, part, or none of the evidence presented." Commonwealth v. Garcia, 474 Pa. 449, 467, 378 A.2d 1199, 1209 (1977) (Plurality opinion, Roberts, J.). But a jury may not create evidence where none exists. See Sparf and Hansen v. United States, 156 U.S. 51, 63-64, 15 S. Ct. 273, 277-278, 39 L. Ed. 343 (1895). Thus, a court does not violate a defendant's right to due process when it refuses to charge on an offense that has no basis in the evidence.


 Lack of Standards The Present State of the Law

 Although a refusal to charge a jury on involuntary manslaughter does not violate due process when no evidence in the record would support such a verdict, a violation of due process may occur if trial judges must decide for themselves the circumstances in which they should give an involuntary manslaughter instruction. Over the past three years, the Pennsylvania Supreme Court has been deeply divided on the availability of an involuntary manslaughter instruction when the evidence would not support a finding of reckless activity that unintentionally caused a death. This division has been reflected in a series of inconsistent decisions that have given similarly situated defendants disparate treatment and have left trial judges without guidance.

 The Supreme Court's difficulties with this issue began in Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977). The facts of Garcia tell the tale of a typical barroom brawl that ended tragically. Commonwealth witnesses testified that during the fight the defendant drew a pistol and shot the victim from close range. The jury heard a very different version of the shooting from the defendant. He testified that the weapon fell from his belt while he was wrestling with the victim; the pistol discharged accidently as he was trying to pick it up. Id. at 454, 378 A.2d at 1202.

 The trial court refused the defendant's request for an involuntary manslaughter instruction, and the jury convicted the defendant of voluntary manslaughter. On appeal, the Pennsylvania Supreme Court reversed and ordered a new trial. In a plurality opinion that represented the view of three justices, Justice Roberts stated that


[because] involuntary manslaughter is a lesser included offense of murder, and because the evidence would support an involuntary manslaughter verdict whenever it would support a murder or voluntary manslaughter verdict, a defendant should be entitled to a requested instruction on involuntary manslaughter in all criminal homicide prosecutions. . . .


. . . The United States Constitution requires the Commonwealth to prove every element of the offense, including the degree of culpability, beyond a reasonable doubt. Thus, in any case in which the evidence would be sufficient to sustain a verdict of murder or voluntary manslaughter, the jury might conclude that the Commonwealth failed to meet its burden of proving malice, intent, or knowledge, but has proven recklessness or negligence.

 Id. at 465-66, 378 A.2d at 1208 (citation omitted). Justice Roberts emphasized that a jury may believe all, some or none of the testimony of each witness. He then expressed the view that the failure of a trial judge to give an involuntary manslaughter instruction would usurp the function of the jury as the judge of the facts. Id. at 468-69, 378 A.2d at 1209-10.

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