NO. 80-3-597, APPEAL FROM THE MAY 7, 1980 JUDGMENT OF SENTENCE OF THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIVISION, CRIMINAL SECTION, IMPOSED ON INFORMATION NOS. 1139 AND 1141-1142 OF FEBRUARY SESSION, 1979
Marilyn J. Gelb, Philadelphia (Court-appointed), for appellant.
Robert B. Lawler Chief, Appeals Div., Stuart Haimowitz, Asst. Dist. Attys., for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., files a concurring opinion. Larsen, J., joins in this opinion and files a concurring opinion in which McDermott, J., joins. McDermott, J., joins in this opinion and files a concurring opinion.
Appellant, Charles Carter, appeals directly from the judgment of sentence of ten to twenty years imprisonment imposed by Philadelphia Court of Common Pleas following his conviction by a jury of third degree murder.*fn1 Appellant argues his trial counsel was ineffective because he did not make an exception when the trial court failed to instruct the jury on the complete statutory definition of voluntary manslaughter.*fn2 Although the judge instructed the jury on "heat of passion" voluntary manslaughter, it did not instruct on "unreasonable belief" voluntary manslaughter as defined in the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 2503(b). We now hold a trial court shall charge on this type of voluntary manslaughter only when requested, where that sub-class of the offense of voluntary manslaughter has been made an issue in the case
and the trial evidence could reasonably support a verdict on it. Because the evidence here could not have reasonably supported a finding of unreasonable belief in the necessity of using deadly force in self-defense, appellant was not entitled to a jury instruction on it. Consequently, his trial counsel was not ineffective for not excepting to the court's failure to charge on it. We therefore affirm Common Pleas' judgment of sentence.
At trial the Commonwealth presented evidence showing that on December 18, 1975 Mark Rogers, his sister Gail Keene, and their cousin Barbara Holmes, were at their grandmother's home. Keene had been living there approximately two weeks. She had shared a home with appellant but moved into her grandmother's following an argument with appellant during which he struck her with a belt. Early that evening appellant telephoned Keene. Rogers picked up a telephone extension and interrupted the conversation by saying, "I want to talk to you, man." Shortly thereafter Rogers hung up the receiver because he said appellant had hung up on him.
Rogers, followed by Holmes, left their grandmother's home and walked around the corner to appellant's home. Rogers wanted to speak with appellant about his sister and the treatment she had received from appellant. Rogers rang the front door bell and appellant opened the door. Rogers said he wanted to talk but appellant responded by slamming the door. Annoyed at appellant's action, Rogers punched and kicked the door, breaking the glass and cutting his hand.
Finally, Holmes persuaded Rogers to return to their grandmother's home. Enroute, they heard appellant shout, "Get out of the way." Holmes ducked behind a car and Rogers jumped behind a hedge. Although he saw appellant was brandishing a shotgun, Rogers stepped from behind the hedge and said, "You got a gun. Well, shoot me then."
Appellant pulled the trigger. The gun failed to discharge and appellant turned and ran towards his home.
Rogers and Holmes proceeded to their grandmother's house where Rogers' cuts were treated. Approximately fifteen minutes later, Rogers and Holmes decided to leave. As they walked out the front door they were confronted with appellant standing on the porch of the house next door. He had a gun in his hand and was pointing it directly at Holmes. She warned Rogers to duck because "Charles has a gun." Appellant fired at Holmes but the shot missed as Rogers pushed her safely off the porch. Appellant fired at Rogers but that shot also missed its target. Gail Keene then ran out of her grandmother's front door and jumped across the porch rail to the porch next door. She threw her arms around appellant and pleaded "[D]rop the gun, that was her brother, don't shoot him." Appellant ignored her pleas, shot Keene in the chest and as Rogers was approaching his injured sister, appellant fired two more shots. Both struck Rogers. As both victims lay bleeding, appellant walked into the street, turned, and ran away. Keene recovered from her injuries but Rogers died about one month later from infection caused by his gunshot wounds.
Appellant also testified at trial. According to him, he retrieved the shotgun after Rogers had broken the door. He testified he "didn't pull the trigger [of the shotgun] because I was afraid of him. I pulled the trigger because I was that angry." After the gun failed to discharge, appellant stated he retrieved the second firearm and followed Rogers "to see ...