Nos. 41 and 54 January Term, 1978, Appeal from the Order and Judgment of Sentence of the Honorable Albert F. Sabo, Judge of the Court of Common Pleas, Criminal Trial Division, Philadelphia County, pronounced on Bills of Information Number 127 and 128 of November Term, 1976 charging Murder and Possession of Instrument of Crime, and from the Order and Judgment of the Superior Court of Pennsylvania on Special Transfer Docket Numbers 208 and 209 entered March 28, 1980 which denied relief to Appellant on all respects other than the issue concerning the propriety of refusing to charge on Involuntary Manslaughter.
Donald C. Marino, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Alan Sacks, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. O'Brien, C. J., and Roberts and Nix, JJ., concurred in the result.
On April 6, 1977, appellant was convicted by a jury of murder of the first degree and possession of an instrument of crime. The trial court 276 Pa. Super. 518, 419 A.2d 578 denied post-verdict motions and appellant was sentenced to consecutive terms of imprisonment for life on the murder conviction and two and one-half to five years on the possession of an instrument of crime conviction. Appellant appealed from these judgments of sentence to this Court. Thereafter, the appeals were transferred to a Special Transfer Panel of the Superior Court which found all assignments of error to be without merit, except for appellant's contention that the trial court erred in refusing his request to instruct the jury on the crime of involuntary manslaughter. The Panel correctly noted the uncertainty in this area of the law and accordingly transferred the case to this Court for resolution of the issue of when a charge on involuntary manslaughter is mandated.*fn1
Since the transfer here, the law in this area has been clarified by a majority of the full Court. In Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980), it was held "that in a murder prosecution, an involuntary manslaughter charge shall be given only when requested, and where the offense has been made an issue in the case and the trial evidence reasonably would support such a verdict." Id., 490 Pa. at 185, 415 A.2d at 402. See also Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980) and Commonwealth v. Walker, 491 Pa. 351, 421 A.2d 172 (1980).
Appellant resided with the decedent, Calvin Yates, in a first floor apartment at 631 N. Twelfth Street, Philadelphia. On October 14, 1976, a police officer discovered decedent's body in a side yard adjacent to appellant's apartment. The cause of death was determined to be a deep stab wound inflicted at least 12 hours before discovery of the body. Appellant was subsequently arrested for the stabbing death of Calvin Yates.
Involuntary manslaughter was not made an issue before the trial court and no evidence whatsoever was presented to support a finding that the death was caused by the reckless or negligent act of another. Appellant denied that he committed any crime and testified that he was asleep at the time when the killing occurred. The prosecution's star witness testified that appellant told him he was going to kill Yates and showed him the body in the side yard the morning after the murder. Thus, the evidence presented left the jury with only one of two choices; either the appellant was guilty of murder or he was innocent of all charges. Hence, the trial court correctly refused appellant's request for an instruction on involuntary manslaughter.
Judgments of sentence are ...