Commonwealth v. Terrell 482 Pa. 303, 393 A.2d 1117

OPINION

POMEROY, Justice.

Richard Alexander was shot to death and O’Dell Watson wounded by gunfire in a fracas which took place in Pittsburgh on April 4, 1975. Appellant Charles Francis Terrell was arrested as the culprit and was charged, inter alia, with murder, voluntary manslaughter and involuntary manslaughter in connection with the death of Alexander.1 After a jury had been selected but prior to the presentation of evidence, the Commonwealth moved to nolle prosequi the involuntary manslaughter count, and the motion was granted over appellant’s objection. The jury found Terrell guilty of voluntary manslaughter and several other charges, and acquitted him of aggravated assault. Post-trial motions were filed and denied, and judgments of sentence entered.2

*306These appeals followed.3

The sole question presented in this case is whether the trial court erred in refusing appellant’s timely request for an instruction on involuntary manslaughter. We answer in the affirmative.

It is now settled law in this Commonwealth that in prosecutions for criminal homicide under the Crimes Code4 a defendant has the right upon request to an instruction on involuntary manslaughter at least when there is evidence that would rationally sustain such a verdict. Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) (opinion announcing the judgment of the Court); Commonwealth v. Ford, 474 Pa. 480, 378 A.2d 1215 (1977) (opinion announcing the judgment of the Court). See also Commonwealth v. Dussinger, 478 Pa. 182,194, 386 A.2d 500, 506 (1978) (plurality opinion); Commonwealth v. Gartner, 475 Pa. 512, 521, 381 A.2d 114 (1977) (plurality opinion); Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (plurality opinion).5 Resolution of this question thus turns on whether the evidence presented to the jury would have justified a verdict of involuntary manslaughter; the absence of an indictment for involuntary manslaughter is not, by itself, controlling. Commonwealth v. Ford, supra, 474 Pa. at 485, 378 A.2d at 1218.

The Commonwealth’s evidence, as accurately summarized in the opinion of the trial judge denying post-trial *307motions,6 was clearly sufficient to warrant the jury’s verdict. E. g., Commonwealth v. Kramer, 474 Pa. 341, 345, 378 A.2d 824 (1977); Commonwealth v. Hoffman, 439 Pa. 348, 356-59, 266 A.2d 726 (1970). But in assessing the question of whether an involuntary manslaughter instruction should have been given, we must view the evidence in the light most favorable to the defendant. Commonwealth v. Polimeni, supra, 474 Pa. at 443, 378 A.2d at 1196; Commonwealth v. Moore, 463 Pa. 317, 321-22, 344 A.2d 850, 852 (1975). The following is a fair summary of a portion of appellant’s testimony:

Terrell and Alexander, who were friends, were playing cards at another person’s apartment when appellant accused Alexander of cheating. Alexander thereupon scooped up the money on the table and left the apartment. A short time later in the early evening Terrell, who was unarmed, left the apartment and found Alexander inside a jitney station. Terrell asked to talk with Alexander, and at the latter’s suggestion they both went outside. An argument ensued. Alexander then pulled a gun from his jacket pocket. Appellant knew that Alexander carried a knife but did *308not know him to carry a gun. Appellant explained his subsequent conduct as follows:

“A Well, I thought he was pulling his knife out, and when I seen the gun, I don’t know, I went berserk, I guess. I grabbed it. Somehow, I got it. I don’t even know how I got it, and I shot him.

Q And you are saying he pulled the gun out?

A And I snatched it, yes, I did.

Q And then what happened?

A I shot him.

Q Do you recall that?

A Yes.

Q And how many times did you shoot him?

A Just the once, sir.

Q And then what happened?

A This O’Dell Watson jumped me.

Q O’Dell Watson?

A Jumped me then and I didn’t know. I didn’t realize what he was doing to me.

Q Go ahead.

A I didn’t know him and I didn’t even know what he was trying to do.

Q Were you afraid of him?

A I was scared of the whole thing. When I first seen the gun, I was so scared. I didn’t know what to do. That’s why I grabbed it.”

4c 4c $ ‡ 4c $

“Q Now during the argument and altercation with Mr. Alexander, did you have any intention of killing him?

A Of course not.

Q Did you have any intention to do serious bodily harm to him?

A No, sir. If I did, I wouldn’t ask him to come outside. I would have went in there and did it when I was in there.”

After Watson was shot, appellant dropped the gun and left the scene.

*309We think that Commonwealth v. Polimeni, supra, is controlling in the circumstances of this case. Here, as in Polimeni, the jury could have found from the foregoing testimony that although appellant had no intention to kill or do serious bodily harm to Alexander, his conduct was nonetheless criminally reckless in that he consciously disregarded a substantial and unjustifiable risk that death or serious bodily injury might result to Alexander after he “snatched” the gun. 18 Pa.C.S. §§ 302(b)(3), 2504(a). We recognize, as the trial court pointed out, that this theory of the case was shaken by appellant’s testimony on cross-examination, and particularly by his admissions that he knew that the gun was pointed at Alexander. But the testimony contained conflicting versions, as the portions of the testimony set forth in the margin illustrate,7 and the resolution of these versions was for the jury. See Commonwealth v. Polimeni, supra, 474 Pa. at 443-46, 378 A.2d at 1196-98.

*310As noted above, the question whether an involuntary manslaughter instruction should have been given is the only issue raised in this case. Our conclusion that the instruction should have been given does not, however, affect the jury’s verdicts on the lesser charges, and no questions are presented concerning the sufficiency of the evidence or any asserted trial errors in connection with the convictions for those offenses. Accordingly, the judgments of sentence relating to all the convictions save the one for voluntary manslaughter must be affirmed.

*311The judgments of sentence at No. 3 March Term, 1977, are affirmed. The judgment of sentence at No. 140 March Term, 1976, for voluntary manslaughter, is reversed and a new trial is granted.

ROBERTS, J., filed a concurring opinion in which O’BRIEN, J., joins.

NIX, J., filed a concurring opinion.

MANDERINO, J., filed a concurring opinion.

ROBERTS, Justice,

concurring.

The majority opinion in Commonwealth v. Smith, 474 Pa. 559, 379 A.2d 96 (1977), held that, in every prosecution for criminal homicide under the Crimes Code, the defendant, upon request, is entitled to a jury instruction on involuntary manslaughter. Here appellant was denied his timely request for an instruction on involuntary manslaughter. For the reasons stated in Smith and in Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (Opinion of Roberts, J., joined by O’Brien, J., and Manderino, J., announcing the Judgment of the Court), appellant was entitled to the requested charge. See also Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) (Concurring opinion by Roberts, J., joined by O’Brien, J.); Commonwealth v. Ford, 474 Pa. 480, 378 A.2d 1215 (1977) (Concurring opinion by Roberts, J., joined by O’Brien, J.). I therefore agree that appellant is entitled to a new trial on the voluntary manslaughter conviction.

O’BRIEN, J., joins in this concurring opinion.

NIX, Justice,

concurring.

I again affirm the views in this area as expressed in my dissenting opinions in Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (Nix, J., dissenting) and Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975) (Nix, J., dissent*312ing). Under the formulation articulated in my dissents in Garcia and Moore, an instruction on involuntary manslaughter is necessary in the present case not merely because, as Mr. Justice Pomeroy points out, the record supplies a rational basis for such a result, but because whether the killing was reckless was a disputed fact in this case. See Commonwealth v. Gartner, 475 Pa. 512, 533 n.3, 381 A.2d 114, 125 n.3 (1977) (Nix, J., concurring and dissenting).

MANDERINO, Justice,

concurring:

For the reasons expressed in my concurring opinion in Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977), I join in the result reached by the Court in this case. I repeat, however, that in any case in which a defendant is charged with criminal homicide, he or she is entitled upon timely request to have the jury instructed as to the elements of the crime of involuntary manslaughter — regardless of the evidence presented at trial.