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COMMONWEALTH PENNSYLVANIA v. JAVIER GABRIEL PAOLI (04/13/84)

filed: April 13, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
JAVIER GABRIEL PAOLI, APPELLANT



No. 1744 Phila., 1981, Appeal from the Judgment of Sentence of April 13, 1981 in the Court of Common Pleas of Lehigh County, Criminal Division, at No. 895 of 1978.

COUNSEL

Edward R. Eidelman, Philadelphia, for appellant.

Richard R. Tomsho, Assistant District Attorney, Allentown, for Commonwealth, appellee.

Brosky, McEwen and Watkins, JJ. Brosky, J., filed a concurring statement.

Author: Watkins

[ 327 Pa. Super. Page 566]

This case is on appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Lehigh County denying defendant's post-verdict motions in arrest of judgment and for a new trial. The defendant, Javier Gabriel Paoli, was convicted of first-degree murder and sentenced to life imprisonment.

On appeal, the defendant raises numerous issues. He characterizes the question of whether the charge of the court below was contrary to the stated law as the most serious issue. The charge included the court's opinion that there was no evidence of any of the elements of manslaughter. Counsel objected to the court's expression of opinion. We have reviewed the record and we find that the charge complied with the law applicable at the time of the trial as stated in Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977). Under the facts presented here, as in Bennett, the court's expression of opinion was not error because the jury was repeatedly told they were not bound by the court's opinion.

Appellant claims the expression of opinion deprived him of his right to a fair trial by denying him an effective voluntary manslaughter charge. The record clearly reveals that there was indeed no evidence which warranted a voluntary manslaughter verdict. That it was this lack of evidence, and not the opinion in the charge, which prompted the jury's finding is clear from the fact that the jury did not

[ 327 Pa. Super. Page 567]

    exercise the option of finding third-degree murder. It is undisputed that the charge regarding third-degree murder was completely satisfactory to all parties and yet the jury demonstrated no inclination to find anything less than first-degree murder.

In addition, defendant also had the benefit of an involuntary manslaughter charge. He did not object that this instruction was rendered ineffective by the remainder of the remarks in the charge. Such an objection would be expected if the court's expression of opinion was indeed of genuine concern. In any event, as we have already stated, the charge complied with Commonwealth v. Bennett, supra, because the court stressed that the jurors were not bound by its opinion.

It is interesting to note that the Supreme Court of Pennsylvania has acknowledged that Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974) (cert. denied, 419 U.S. 1000, 85 S.Ct. 316, 42 L.Ed.2d 274 (1974), the per curiam decision requiring a voluntary manslaughter charge even in the absence of evidence of provocation or passion, has been eroded by recent decisions. The Court has recognized that permitting the jury to consider a verdict where no evidence exists to support it may invite arbitrariness. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982) citing Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980) and Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980).

Appellant's other claims of error are wholly without merit. Two extensions of time were granted the Commonwealth pursuant to Pa.Rules of Criminal Procedure, Rule 1100 and were justified under the law due to the fact that crucial witnesses had deliberately concealed their whereabouts. Commonwealth v. Brown, 252 Pa. Superior Ct. 365, 381 A.2d 961 (1977); Commonwealth v. Lane, 245 Pa. Super.Ct. 146, 369 A.2d 335 (1976). The lower court adequately reviewed the evidence of the ...


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