Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County, No. 2242 CD 1985.
Patricia Wenger, Assistant Public Defender, Harrisburg, for appellant.
Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
Wieand, Beck and Cercone, JJ.
[ 365 Pa. Super. Page 227]
Luis Toledo was tried by jury and was found guilty of murder of the first degree in connection with the shotgun slaying of Lazaro Gonzalez in Harrisburg on July 26, 1985. On direct appeal from a sentence of life imprisonment, Toledo contends that the evidence was insufficient to sustain the finding of first degree murder or, in the alternative, that the verdict was contrary to the weight of the evidence. He also argues that the trial court erred when it (1) refused to charge the jury on "heat of passion" voluntary manslaughter; (2) permitted selected portions of the trial testimony to be read back to the jury; and (3) refused to declare a mistrial because of comments made by the prosecutor during closing argument. We find no merit in these contentions and, therefore, affirm the judgment of sentence.
The test to be applied in determining the sufficiency of the evidence is whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the jury could have found that each element of the offense was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984).
The crime of first degree murder is defined as follows:
[ 365 Pa. Super. Page 228]
where the verdict is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Datesman, 343 Pa. Super. 176, 182, 494 A.2d 413, 416 (1985). In view of the evidence received at trial in this case, it is clear that the trial court did not abuse its discretion in refusing to find that the verdict was contrary to the weight of the evidence.
Appellant also contends that the trial court erred when it refused to instruct the jury, upon request, regarding a "heat of passion" voluntary manslaughter defense. We agree with the Commonwealth and the trial court that the facts in the case did not warrant such a charge. The evidence suggested that Gonzalez had died as a result of a single shotgun blast to the lower back. There was no evidence that the shooting had been provoked. The defense offered at trial was one of mistaken identity. Appellant argues on appeal that he was nevertheless entitled to a "heat of passion" voluntary manslaughter instruction because of the "mercy dispensing power" of the jury.
This had been the holding of Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974). However, the rule had a short-lived history. Justice Nix (now Chief Justice), who had been the author of Jones, wrote in dissent in Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978), where the Court extended the rule to "unreasonable belief" voluntary manslaughter, that the enactment of the 1972 Crimes Code afforded an opportunity to reassess the wisdom and utility of the Jones rule and to set it aside. The term "'mercy dispensing power,'" he observed, was a "'euphemism to justify a rationally unsupportable verdict.'" Such an approach invited arbitrary action by juries and left a reviewing court powerless to remedy discriminatory verdicts. Id., 477 Pa. at 504, 384 A.2d at 1201, quoting Commonwealth v. Gartner, 475 Pa. 512, 533, 381 A.2d 114, 125 (Nix, J. concurring and dissenting).
In Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), a majority of the Court, in reliance upon Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982)
[ 365 Pa. Super. Page 230]
and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), observed that "'[d]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.'" Id. 500 Pa. at 72, 454 A.2d at 967, quoting Hopper v. Evans, supra at 611, 102 S.Ct. at 2053, 72 L.Ed.2d at 373 (emphasis in original). The majority also noted that as a Court it had "rejected the practice of charging the jury, on request, on the crime of involuntary manslaughter without regard to the evidence . . . ." Id. 500 Pa. at 73, 454 A.2d at 967, citing Commonwealth v. White, 490 Pa. 179, 184, 415 A.2d 399, 401 (1980) and Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980). Therefore, a majority of the Court concluded, "[i]n an appropriate case, this Court would have to consider whether Roberts v. Louisiana, supra, would require a similar result regarding instructions on voluntary manslaughter in the absence of evidence to support such an offense." Id. 500 Pa. at 73, 454 A.2d at 967.
This occurred in Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983), when the Supreme Court held that a defendant was entitled to an "unreasonable belief" voluntary manslaughter charge only where the offense had been made an issue in the case and the evidence would reasonably support such a verdict. Finally, in Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984), in response to a defense argument, the Court held that the practice of instructing a jury, upon defense request, regarding the elements of voluntary manslaughter whether or not evidence existed to support a charge, did not inject an element of arbitrariness by inviting the jurors to disregard their oaths to apply the law to the evidence presented. By way of a footnote, the majority wrote, without dissent, as follows:
There is little or no vitality left to this practice which stems from this Court's decisions in Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974) and ...