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COMMONWEALTH PENNSYLVANIA v. JOSEPH M. DRAXINGER (09/27/85)

filed: September 27, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH M. DRAXINGER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, at No. CC 82-01793A.

COUNSEL

Alan D. Levy, Pittsburgh, for appellant.

Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Brosky, Rowley and Feeney,*fn* JJ. Rowley, J., notes his dissent.

Author: Brosky

[ 345 Pa. Super. Page 555]

This case is before us on appeal from judgment of sentence imposed following appellant's conviction of voluntary manslaughter. Appellant argues that the trial court erred in refusing his timely request to charge the jury on involuntary manslaughter, and in precluding appellant from proceeding with a defense of diminished mental capacity. We agree that the trial court erred in refusing to charge the jury on involuntary manslaughter, and we therefore reverse and remand for a new trial.

On February 5, 1982, appellant returned home from work and ate dinner with his wife. After dinner, the two began to consume alcoholic beverages. An argument ensued, lasting nearly two hours, culminating in the shooting death of appellant's wife. Police were called, and arrived to find appellant outside the building with a bullet wound in his wrist, and appellant's wife on the living room floor, lying in

[ 345 Pa. Super. Page 556]

    a pool of blood with a gunshot wound to her face. Appellant was taken to a hospital, and two weeks later was charged with criminal homicide. A jury found him guilty of voluntary manslaughter, and, after the filing and denial of post-trial motions, appellant was sentenced to a term of five to ten years imprisonment.

A person commits the crime of involuntary manslaughter "when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person." 18 Pa.C.S. ยง 2504. In Commonwealth v. White, 490 Pa. 179, 186, 415 A.2d 399, 402 (1980), and in Commonwealth v. Williams, 490 Pa. 187, 190, 415 A.2d 403, 404 (1980), our Supreme Court 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 would support such a verdict." In assessing whether or not the charge should have been given, the appellate court will view the evidence in the light most favorable to the defendant. Commonwealth v. Terrell, 482 Pa. 303, 307, 393 A.2d 1117, 1119 (1978).

In the case before us, appellant was the only witness to the shooting. Although he did not take the stand, four separate statements given by appellant to the police were admitted into evidence. At the scene of the shooting, appellant told a police officer that he was sitting at the kitchen table playing with a gun when the gun discharged, the bullet passing through his wrist and striking his wife who was standing in the living room. (The police determined that the bullet did indeed strike appellant's wrist, but did not exit the wrist).

At the hospital, appellant stated that he had taken a recently purchased gun from a case and was showing it to his wife, when an argument erupted over the merits of the weapon. ...


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