No. 203 March Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, entered on October 18, 1979, at No. CC7307839.
John A. Halley, Pittsburgh (Court-appointed), for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kathryn L. Simpson, Asst. Dist. Atty., Pittsburgh, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., files a dissenting opinion in which O'Brien C. J., joins.
Appellant, Ronald Frank Milton, was convicted of robbery and murder of the first degree in the Allegheny County Court of Common Pleas. After denial of post-verdict motions, a direct appeal was taken to this Court whereupon the judgments of sentence were affirmed. 483 Pa. 9, 394 A.2d 512. Subsequently, a claim for post-conviction relief, based on an assertion of ineffectiveness of counsel, was denied and the present appeal ensued.
The ineffectiveness of counsel claim is grounded upon a failure to preserve in post-trial motions an objection made at trial to the jury charge. The asserted defects in the charge are an incomplete definition of voluntary manslaughter and an improper expression of opinion by the judge with respect to the inappropriateness of a voluntary manslaughter verdict. The challenged portion of the charge is the following:
Let me, therefore, turn to the third offense that has been brought against this individual, and that is Voluntary Manslaughter. I just stated to you that Voluntary Manslaughter is a lesser grade than murder. And Voluntary Manslaughter may be defined for you as the intentional and unlawful killing of a human being without malice-without malice-either expressed or implied, but under the immediate influence of sudden passion resulting from serious provocation. Now, the absence of malice is the controlling element which reduces the unlawful killing to manslaughter.
Voluntary Manslaughter also exists where at the time of the killing the defendant believed the circumstances to
be such that, if they existed, would have justified the killing, but his belief was unreasonable. I don't believe that this factor is involved in the present case.
As Voluntary Manslaughter is frequently a wilful [sic] act, to reduce a felonious killing to manslaughter it is necessary that the circumstances indicate the absence of malice, either direct or implied. Therefore, Voluntary Manslaughter exists where there was an intentional act which caused death, but it was administered with a sufficient provocation and while the defendant was either in a state of rage or passion, without time to cool, so that he was placed beyond the control of his reason and suddenly impelled to do the deed. Now, if any of these three factors be lacking, if there is provocation but no passion, or if there is passion without ...