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COMMONWEALTH PENNSYLVANIA v. GARY THOMAS FISHER (03/04/85)

submitted: March 4, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY THOMAS FISHER, APPELLANT



Appeal from the Judgment of Sentence of June 22, 1983 in the Court of Common Pleas of Allegheny County, Criminal Division, at No. 8205545A.

COUNSEL

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Com., appellee.

Olszewski, Hester and Shiomos, JJ.*fn*

Author: Per Curiam

[ 342 Pa. Super. Page 536]

This is an appeal from a judgment of sentence entered June 22, 1983 in Allegheny County. Appellant, Gary Thomas Fisher, was convicted of voluntary manslaughter and sentenced to imprisonment for not less than five nor more than ten years. Sentence followed a jury trial and the denial of post-trial motions.

On Saturday, May 15, 1982, several young adults and adolescents held a beer party in the Allentown district of the city of Pittsburgh. The primary party-goers were 18-year-old Dale Jays, 13-year-old Jennifer Metrovich, 13-year-old John Leasa and 18-year-old Allan Kelly, the victim. Others attended.

Metrovich was appellant's girlfriend, and appellant was a friend of Jays, Leasa and the victim. The party, which was held on a wooded hillside near Starch and Excelsior Streets, began at 6:00 P.M. At 4:00 A.M., when only Metrovich and the victim remained, appellant arrived. He was not present earlier as he attended a bachelor's party.*fn1

Apparently upset by the exchange of affection between Metrovich and Kelly, appellant berated Metrovich for "messing" with his friends and called her a "little whore." At that moment, Kelly tackled appellant and a fight began.

[ 342 Pa. Super. Page 537]

During most of the struggle, Kelly was on top of appellant, striking appellant's face and chest with his fists.*fn2 Appellant pleaded with Kelly to stop. Appellant freed himself momentarily, but Kelly tackled him again and resumed striking him.

Appellant removed an eight-inch buck knife from a sheath attached to his belt and stabbed Kelly twice in the chest; one wound penetrated Kelly's heart. Appellant then broke away and ran to his home. He returned with his sister and joined Dale Jays in carrying Kelly from the wooded area to Excelsior Street.

When they placed Kelly on the pavement, appellant yelled, "Let me finish him off." Jays thwarted appellant's attempt to reach Kelly, and appellant warned Jays that, "I will stab your ass too." Appellant also threatened to "finish off" the entire neighborhood. He was eventually restrained by his mother and sister.

Shortly thereafter, the police and paramedics arrived. Kelly was taken to Mercy Hospital where he died that morning from cardiac arrest. Appellant was arrested and charged with criminal homicide.

It is appellant's first contention that the lower court improperly charged the jury on the crime of voluntary manslaughter. Appellant objects to the charge on several grounds. First, he complains that the court ignored statutory language by reading from the Pennsylvania Suggested Jury Instructions. By doing so, the court failed to instruct the jury on the Commonwealth's alleged burden to prove passion and provocation as elements of voluntary manslaughter.

We note that the lower court did indeed read the statutory language for the jury. It read the statutory definitions of criminal homicide, 18 Pa. C.S.A. § 2501, and voluntary

[ 342 Pa. Super. Page 538]

    manslaughter, 18 Pa. C.S.A. § 2503. (N.T., ...


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