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filed: August 15, 1988.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Adams County, No. CC-273-86.


Elizabeth J. Maitland and Edward J. McCormick, III, Littlestown, for appellant.

Roy A. Keefer, Assistant District Attorney, Gettysburg, for Com., appellee.

Cirillo, President Judge, Wieand and Del Sole, JJ.

Author: Wieand

[ 377 Pa. Super. Page 231]

Craig Rice, a student at Gettysburg High School, disappeared after school on November 12, 1985. His body, in various stages of decomposition, was found in a wooded area, near a stream, on March 28, 1986. Gregory Brent

[ 377 Pa. Super. Page 232]

Harner, a classmate, was subsequently arrested and charged in separate counts of the same information with first degree murder,*fn1 third degree murder,*fn2 voluntary manslaughter committed in the heat of passion,*fn3 voluntary manslaughter committed in the unreasonable belief that killing was justifiable,*fn4 and involuntary manslaughter.*fn5 The jury which heard the evidence found Harner guilty of voluntary manslaughter in the unreasonable belief that the killing was justifiable.*fn6 Post-trial motions were denied, and Harner was sentenced to serve a term of imprisonment for not less than five years nor more than ten years. On direct appeal, Harner contends that the evidence was insufficient to sustain the jury's verdict, that the trial court committed error in several evidentiary rulings, and that trial counsel rendered ineffective assistance. We find no merit in these arguments and affirm the judgment of sentence.

Appellant's principal argument is that there was no evidence that he had killed Rice in the unreasonable belief that killing was justified. The Commonwealth agrees that there was no such evidence but argues that there was sufficient evidence to show murder of the first or third degree and that the jury's verdict, therefore, was proper as an exercise of its mercy dispensing power. Appellant counters that recent decisions of the Supreme Court have deprived juries in homicide cases of any mercy dispensing power. He argues that in the absence of evidence to

[ 377 Pa. Super. Page 233]

    support the jury's verdict he is entitled to be discharged. We reject this argument.

The law in this Commonwealth has always been that a conviction for voluntary manslaughter will be upheld as long as the evidence is sufficient to show that the elements of murder were present. Thus, in Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970), the Supreme Court said:

Few propositions are better established in the criminal law than the doctrine that where the evidence would be sufficient to support a conviction of murder, the return of a verdict of voluntary manslaughter is strictly within the jury's prerogative even in the absence of provocation and passion.

As the cases enunciating the doctrine make clear, all that is required before a conviction of voluntary manslaughter in the absence of passion and provocation will be allowed to stand is that the evidence be such that the jury could have found present every element of murder.

In short, the rationale of the doctrine under discussion is found in a combination of two factors: a realistic appreciation of the humanity of those who sit on our juries, and the legal concept that voluntary manslaughter is by definition a lesser offense than murder but one included within a murder indictment.

Id., 439 Pa. at 356-359, 266 A.2d at 731-732. See also: Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977); 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); Commonwealth v. Hill, 444 Pa. 323, 281 A.2d 859 (1971); Commonwealth v. Frazier, 420 Pa. 209, 216 A.2d 337 (1966). There is no reason why the rule should be different when voluntary manslaughter occurs because there is an unreasonable belief that killing is justified.

[ 377 Pa. Super. Page 234]

In Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978), the Supreme Court held that a defendant in a murder trial was entitled, upon request, to an instruction on unreasonable belief voluntary manslaughter. This rule, however, was short-lived. In Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983), the Supreme Court overruled Manning and held that a defendant was entitled to an unreasonable belief voluntary manslaughter charge only upon request "where the offense has been made an issue in the case, and the trial evidence reasonably would support such a verdict." Id., 502 Pa. at 443, 466 A.2d at 1332-1333 (footnote omitted). The Court reasoned:

Simply because unreasonable belief voluntary manslaughter sometimes may arguably be a lesser-included offense of murder is not a valid reason upon which to base a requirement that a trial judge must instruct a jury on an offense extraneous to the proof at trial. Such requirement only serves to confuse juries and invite them to base their verdicts on whim and caprice. Whatever the merits, or current vitality of the theory that due process requires an instruction on common law voluntary manslaughter in every murder case, we see no reason to extend that theory to require instruction on imperfect self-defense where there is no evidence to support it. Further, invitations to jury confusion or irrationality are unnecessary. Such invitations would be offered here if the jury had been instructed on "unreasonable belief" voluntary manslaughter when the proof at trial did not rationally support a verdict on it.

Commonwealth v. Carter, supra, 502 Pa. at 442-443, 466 A.2d at 1332 (footnote omitted).

Appellant argues that with its decision in Carter, the Supreme Court overruled the line of cases holding that a jury has a mercy dispensing power which allows it to reduce a proven murder to voluntary manslaughter. It follows, he suggests, that a conviction for unreasonable belief voluntary manslaughter which is unsupported by the evidence

[ 377 Pa. Super. Page 235]

    cannot be sustained by evidence of murder. We do not so interpret Carter.

In the instant case, the prosecuting attorney had specifically charged appellant, inter alia, with "unreasonable belief" voluntary manslaughter. At trial, after all evidence had been received, the trial court inquired of both counsel whether any charges were to be withdrawn. Defense counsel took the position, as he had done earlier in the trial, that the charge of "unreasonable belief" voluntary manslaughter should not be withdrawn and that the jury should be instructed thereon. Consequently, the jurors were so instructed. They were told that guilty of "unreasonable belief" voluntary manslaughter was a possible verdict which they could return. Appellant cannot complain that the trial court instructed the jury as requested or that the jury returned a verdict which, according to the court's instructions, was a permissible verdict.

The decision in Carter does not require a different result. That decision held only that a defendant is not entitled to an instruction on "unreasonable belief" voluntary manslaughter unless such a verdict would find support in the evidence. In the instant case, however, appellant had been charged specifically with "unreasonable belief" voluntary manslaughter, did not want the charge withdrawn, and requested the trial court to instruct the jury thereon. Carter did not hold, at least under these circumstances, that a jury could not return a verdict finding the defendant guilty of voluntary manslaughter so long as the evidence was such that the jury could have found the defendant guilty of murder. If the elements of murder were present, a verdict of guilty of voluntary manslaughter was neither arbitrary nor unsupported. See: Commonwealth v. Hill, supra, 444 Pa. at 326, 281 A.2d at 860.

Therefore, we must examine the evidence to determine whether it was sufficient to support a finding of murder. In making this examination, we determine whether, "viewing all of the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable

[ 377 Pa. Super. Page 236]

    to the Commonwealth, the trier of fact could have found that each element of the offense[] [of murder] 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). Moreover, "[w]hen conflicts and discrepancies arise, it is within the province of the jury to determine the weight to be given each testimony and to believe all, part, or none of ...

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