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decided: March 13, 1981.


No. 80-1-38, Appeal from the Order of the Superior Court at No. 47 Special Transfer Docket, Affirming the Order of the Court of Common Pleas, Criminal, of Westmoreland County, at No. 1136 October Term, 1977


John M. O'Connell, Jr., O'Connell & Silvis, Greensburg, for appellant.

James J. Conte, Asst. Dist. Atty., Greensburg, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Flaherty and Kauffman, JJ., file concurring opinions. Nix, J., concurs in the result. Larsen, J., did not participate in the consideration or decision of this case.

Author: O'brien

[ 493 Pa. Page 428]


This is an appeal from the judgment of sentence imposed by the Court of Common Pleas of Westmoreland County following appellant's conviction of murder of the third degree.

[ 493 Pa. Page 429]

Appellant raises eleven issues in this appeal. However, the single critical issue presented is whether the trial court erred in refusing to instruct the jury on the complete statutory law of voluntary manslaughter. Appellant was charged with criminal homicide under the Crimes Code, 18 Pa.C.S.A. § 2501.*fn1 At trial he made a timely request for an instruction on the definition of voluntary manslaughter as set forth in 18 Pa.C.S.A. § 2503(b).*fn2 Relying on Commonwealth Page 429} v. Black, 474 Pa. 47, 376 A.2d 627 (1977), the court denied the requested instruction on the basis that self-defense was not an issue in the case. The court did, however, instruct the jury on voluntary manslaughter as it is defined in § 2503(a).*fn3

Trial of the instant case was completed only thirteen days before this Court's decision in Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978), which held that a defendant has an unconditional right on request to an instruction on the complete statutory definition of voluntary manslaughter regardless of whether there is a basis in the evidence for a voluntary manslaughter verdict. In considering appellant's post-trial motions the court recognized that the intervening Manning decision appeared to require a new trial of the case but refused to view Manning as binding precedent and denied the motion for a new trial.

Appellant's judgment of sentence was affirmed by a special panel of the Superior Court which upheld the trial court's refusal to give a full voluntary manslaughter charge. The Superior Court panel expressly refused to follow Manning on the basis that "no more than three justices" of the Supreme Court currently agree on the premise upon which the rule rests -- viz., that a defendant charged with homicide is entitled to "any jury instruction not warranted by the evidence." Moreover, the panel noted, "such a rule is inconsistent with Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977), wherein the Supreme Court held that the trial

[ 493 Pa. Page 430]

    court need not instruct the jury on self-defense unless the evidence justifies such a finding." Commonwealth v. Schaller, Superior Court No. 47 Special Transfer Docket. We granted appellant's petition for allowance of appeal from the Superior Court's order affirming the conviction of murder of the third degree.


On this appeal the Commonwealth concedes that the trial court's ruling was contrary to our decision in Manning, but urges this Court to reconsider the rationale in Manning and overrule that decision while affirming the judgment of sentence in the instant case. The Commonwealth argues that where the trial court has ruled as a matter of law that self-defense is not an issue in the case, a jury instruction on voluntary manslaughter as defined in 18 Pa.C.S.A. § 2503(b) is not required.

As a general rule the trial court should instruct the jury on the law applicable to the facts of the case before it and should charge only on those points and issues which arise out of the evidence and arguments presented. Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975). Nevertheless, it is clear that the jury should be instructed on the full extent of its power so it may exercise its common sense judgment in determining not only the guilt or innocence of the accused, but also the degree of guilt if guilt is found. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1974); Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1958).

Pennsylvania case law has long recognized the jury's power to return a verdict of voluntary manslaughter in the absence of provocation and passion where the defendant is charged with murder and the evidence is sufficient to support a conviction of murder. Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970); Commonwealth v. Kellyon, 278 Pa. 59, 122 A. 166 (1923). The jury's right to do so derives from ...

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