Com. v. Covil

• Decision Date: 07 October 1977
• Citation: 474 Pa. 375,378 A.2d 841
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania v. Kenneth COVIL, Appellant.

Page 841

378 A.2d 841

474 Pa. 375

COMMONWEALTH of Pennsylvania v. Kenneth COVIL, Appellant.

Supreme Court of Pennsylvania.

Submitted April 19, 1977.

Decided Oct. 7, 1977.

Louis M. Natali, Jr., Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Maxine J. Stotland, Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.

OPINION OF THE COURT

ROBERTS, Judge.

Appellant was indicted on charges of murder and conspiracy arising out of the August 17, 1973 stabbing death of Samuel Molten. On May 13, 1974, after a jury trial, appellant was found guilty of murder of the first degree and conspiracy. After post-verdict motions were denied appellant was sentenced to consecutive sentences of life imprisonment on the murder conviction and ten years probation on the conspiracy conviction. In this appeal ¹ appellant contends that the trial court erred in refusing his request for a jury instruction on voluntary manslaughter. We agree, reverse judgment of sentence and grant appellant a new trial on the murder conviction. ² Finding no error which affects the conviction for conspiracy, we affirm judgment of sentence on the conspiracy charge.

I

Appellant's trial began after this Court's decision 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). In Jones, we decided that for all trials after that opinion was filed a defendant charged with murder is entitled, upon request, to a jury instruction on voluntary manslaughter. ³ Thus, appellant was entitled to an instruction on voluntary manslaughter.

The trial court concluded that the rule adopted in Jones does not apply to prosecutions brought pursuant to the new Crimes Code. ⁴ However, Jones was decided nearly a year after the Crimes Code became effective, and announced a rule applicable to trials which commenced after the date of that decision. ⁵ Clearly, this Court contemplated that the rule would be applied to prosecutions brought pursuant to the Crimes Code. There is nothing in the Crimes Code which convinces us that our decision was incorrect. ⁶

The Commonwealth also contends that failure to instruct the jury on voluntary manslaughter was harmless error because the jury returned a verdict of guilty of murder of the first degree. We cannot conclude, however, that simply because the jury found appellant guilty of murder of the first degree instead of murder of the second degree, a jury instruction on voluntary manslaughter could not have affected the verdict. In United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3d Cir. 1974) (en banc), cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975), a case which, like this case, involved a failure to grant a Pennsylvania defendant's requested instruction on voluntary manslaughter, the Third Circuit reasoned:

"This contention (that the error was harmless because the jury returned a verdict of murder of the first degree) overlooks the possibility that if a jury had three options instead of two, the jury could have compromised on the middle ground of second degree. Although of course no one can say with precision that given three alternatives, the jury has a greater probability of compromise, we do recognize that with three alternatives, at least 'there is a reasonable possibility' of compromise. Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). Therefore, we cannot say that failure to give the charge 'was harmless beyond a reasonable doubt.' Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)."

503 F.2d at 346 (footnote omitted). We find the harmless error analysis in Matthews to be persuasive, and adopt it as a matter of state law. ⁷

The Commonwealth relies on the opinion in support of affirmance 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). While the rule adopted in Jones that a defendant is entitled to a requested instruction on voluntary manslaughter received the support of all six participating Justices, the harmless error analysis in the opinion in support of affirmance was adopted by only three of the six Justices. ⁸ Thus, the opinion in support of affirmance has no precedential value on the harmless error issue; we consider it only for its persuasive value. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Commonwealth v. Rightnour, 469 Pa. 107, 364 A.2d 927 (1976) (plurality opinion). See generally Commonwealth v. Davenport, 462 Pa. 543, 559 n.3, 342 A.2d 67, 75 n.3 (1975).

The opinion in support of affirmance in Jones concluded that because the jury did not return a verdict of guilty of murder of the second degree, there is no reason to conclude the jury would have returned a voluntary manslaughter verdict if an appropriate instruction had been given. As is made clear by the Third Circuit's later decision in Matthews, this analysis overlooks the possibility that granting an instruction on voluntary manslaughter would make the jury more likely to return a compromise verdict of murder of the second degree. We therefore conclude that denial of a voluntary manslaughter instruction is not harmless error simply because the jury returned a verdict of murder of the first degree. Thus, this Court held in Commonwealth v. Jones (a/k/a Dupree), --- Pa. ---, 373 A.2d 1338 (1977), that denial of the defendant's right to a jury instruction on voluntary manslaughter was reversible error even though the jury returned a verdict of murder of the first degree.

Therefore, appellant's conviction of murder of the first degree must be reversed, and a new trial granted.

II

The trial court's failure to instruct the jury on voluntary manslaughter, in a case in which there is no evidence of provocation or self-defense, does not affect the validity of a conviction for conspiracy. Commonwealth v. Whitfield, --- Pa. ---, 376 A.2d 617 (J. 18, 1974, filed August 8, 1977). The reason the court must grant a requested instruction on voluntary manslaughter is not that the facts would support a conclusion by the jury that the killing was committed in the heat of passion or under conditions of imperfect self-defense. Rather, the instruction is given because the jury may, out of sympathy or an awareness of extenuating circumstances, find the defendant guilty of a lesser degree of criminal homicide than the evidence could support. It is because of this mercy dispensing power that the defendant is entitled to have the jury informed of all permissible verdicts. With respect to the conspiracy charge, however, the jury was informed of all permissible verdicts. While an instruction on voluntary manslaughter might have affected the degree of murder for which the jury decided to convict appellant, it could not have led the jury to acquit appellant of conspiracy.

Therefore, we must address appellant's additional claims that the trial court erred: 1) in admitting into evidence a conversation between the victim and one of the co-conspirators; and 2) in failing to give a requested limiting instruction when this evidence was introduced.

The challenged testimony concerned an argument between Edward Ryder, one of four prisoners accused of the murder, and Samuel Molten. On August 15, 1973, two days before the killing, Molten and Ryder argued loudly while they were on a catwalk twenty to twenty-five feet above the ground floor of the prison. Molten said, "the Muslims are nothing." Ryder responded that "if (Molten) said anything disrespectful towards the Messenger (Black Muslim leader Elijah Muhammad) again, then (Ryder) should throw (Molten) off the balcony."

Appellant objected to this evidence as hearsay. However, these statements were not admitted for the truth of the matters asserted. See generally J. McCormick, Evidence §§ 246, 249 (2d ed. 1972). Molten's statement was not admitted to prove anything about Muslims, but to show a motive for the killing. Similarly, Ryder's statement was not admitted to prove Molten should have been thrown off the balcony, but to prove Ryder's reaction to Molten's statement Ryder's state of mind which in turn helped prove the motive for the killing. The Commonwealth introduced other evidence that the four co-conspirators, Ryder, appellant, and two other Muslim prisoners, plotted to kill Molten because he made disparaging remarks about their religion. Thus, testimony concerning the argument was admissible, not for the truth of the matters asserted, but as proof of the motive for killing. See generally Commonwealth v. Wright, 455 Pa. 480, 317 A.2d 271 (1974).

When evidence is admissible for a limited purpose, a defendant is entitled to a limiting instruction. See McCormick, supra, § 59; 1 J. Weinstein, Evidence PP 105(01), 105(05) (1976). We are not here concerned, however, with the right to a limiting instruction, but with the timing of the instruction. When the evidence was admitted the court concluded that it could not clearly perceive the ultimate meaning of the evidence, and that to try to explain the exact purpose for which the evidence was admitted before the rest of the evidence was presented might be unfair to the Commonwealth or the defendant. The court said it would analyze thoroughly in its general charge the purpose for which the evidence was admitted. ⁹ Appellant objected to this procedure. Therefore we must decide if it was error to postpone the limiting instruction until the end of the case.

A limiting instruction may be given either as the evidence is admitted or as part of the general charge. 1 Weinstein, supra, P 105(05). Troutman v. United States, 100 F.2d 628 (10th Cir. 1938); see United States v. Allen, 468 F.2d 612 (5th Cir. 1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1389, 35 L.Ed.2d 599 (1973) (no error in postponing instruction until general...