Nos. 325 and 378 January Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, January Term, 1977, Nos. 2333, 2335 and 2336
Joel Harvey Slomsky, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Division, Asst. Dist. Atty., Andrew B. Cohn, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion in which O'Brien, J., joined. Nix, J., concurred in the result.
Appellant Michael White was arrested for the robbery of Taylor's Variety Store in North Philadelphia and the shooting death of one Georgell Lewis, the store's manager. He proceeded to trial before a jury and was found guilty of murder of the second degree, robbery, and criminal conspiracy. After denial of post-verdict motions, appellant was sentenced to life imprisonment on the murder conviction, a prison term of ten years to twenty years on the robbery conviction, and another prison term of five years to ten years on the conspiracy conviction, the latter two sentences to run consecutively with each other but concurrently with the sentence for murder. Appellant then brought this appeal in which he raises several assignments of error. However, only one warrants discussion.*fn1
Appellant contends that the trial court erred in refusing his request for a jury instruction on the crime of involuntary manslaughter. Appellant argues that the evidence presented at trial warranted this instruction, and that even if it did not, a jury instruction on involuntary manslaughter is mandatory in all homicide prosecutions, because involuntary manslaughter is a lesser-included offense of murder.
The reason for such alternative arguments is this Court's prior inability to agree upon whether a jury instruction on the crime of involuntary manslaughter need be given in all homicide prosecutions, or only those in which the evidence could rationally lead to a verdict of guilty of that offense and not guilty of the greater homicide offenses. The dilemma
which this has created for litigants was noted by this writer almost one year ago:
Unfortunately for the bar, both prosecution and defense, and the trial bench, the problem exemplified by the instant appeal [whether a jury instruction on involuntary manslaughter need be given in all homicide prosecutions] continues to be subject to differing views, among members of this Court. Since this Court's opinions, filed on October 7, 1977, in Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977); Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) and Commonwealth v. Ford, 474 Pa. 480, 378 A.2d 1215 (1977), several cases have come before this Court raising the present issue, although frequently with crucial factual distinctions, receiving only majority support as to result, not as to rationale.
Commonwealth v. Hinson, 485 Pa. 626, 403 A.2d 564, 566-67 (1979) (Opinion in support of Reversal). Even more unfortunate is the fact that the issue is, as of yet, unresolved.*fn2 Consequently, we begin by addressing the question of whether appellant was entitled to a jury instruction on the crime of ...