Com. v. Carter

• Decision Date: 22 September 1983
• Citation: 466 A.2d 1328,502 Pa. 433
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Charles CARTER, Appellant.
• Court: Pennsylvania Supreme Court

Page 1328

466 A.2d 1328

502 Pa. 433

COMMONWEALTH of Pennsylvania, Appellee, v. Charles CARTER, Appellant.

Supreme Court of Pennsylvania.

Argued April 18, 1983.

Decided Sept. 22, 1983.

[502 Pa. 434] Marilyn J. Gelb, Philadelphia (Court-appointed), for appellant.

Robert B. Lawler Chief, Appeals Div., Stuart Haimowitz, Asst. Dist. Attys., for appellee.

Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

OPINION OF THE COURT

HUTCHINSON, Justice.

Appellant, Charles Carter, appeals directly from the judgment of sentence of ten to twenty years imprisonment imposed by Philadelphia Court of Common Pleas following his conviction by a jury of third degree murder. ¹ Appellant argues his trial counsel was ineffective because he did not make an exception when the trial court failed to instruct the jury on the complete statutory definition of voluntary manslaughter. ² Although the judge instructed the jury on "heat of passion" voluntary manslaughter, it did not instruct on "unreasonable belief" voluntary manslaughter as defined in the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 2503(b). We now hold a trial court shall charge on this type of voluntary manslaughter only when requested, where that sub-class of the offense of voluntary manslaughter has been made an issue in the case and the trial evidence could reasonably support a verdict on it. Because the evidence here could not have reasonably supported a finding of unreasonable belief in the necessity of using deadly force in self-defense, appellant was not entitled to a jury instruction on it. Consequently, his trial counsel was not ineffective for not excepting to the court's failure to charge on it. We therefore affirm Common Pleas' judgment of sentence.

I.

At trial the Commonwealth presented evidence showing that on December 18, 1975 Mark Rogers, his sister Gail Keene, and their cousin Barbara Holmes, were at their grandmother's home. Keene had been living there approximately two weeks. She had shared a home with appellant but moved into her grandmother's following an argument with appellant during which he struck her with a belt. Early that evening appellant telephoned Keene. Rogers picked up a telephone extension and interrupted the conversation by saying, "I want to talk to you, man." Shortly thereafter Rogers hung up the receiver because he said appellant had hung up on him.

Rogers, followed by Holmes, left their grandmother's home and walked around the corner to appellant's home. Rogers wanted to speak with appellant about his sister and the treatment she had received from appellant. Rogers rang the front door bell and appellant opened the door. Rogers said he wanted to talk but appellant responded by slamming the door. Annoyed at appellant's action, Rogers punched and kicked the door, breaking the glass and cutting his hand.

Finally, Holmes persuaded Rogers to return to their grandmother's home. Enroute, they heard appellant shout, "Get out of the way." Holmes ducked behind a car and Rogers jumped behind a hedge. Although he saw appellant was brandishing a shotgun, Rogers stepped from behind the hedge and said, "You got a gun. Well, shoot me then." Appellant pulled the trigger. The gun failed to discharge and appellant turned and ran towards his home.

Rogers and Holmes proceeded to their grandmother's house where Rogers' cuts were treated. Approximately fifteen minutes later, Rogers and Holmes decided to leave. As they walked out the front door they were confronted with appellant standing on the porch of the house next door. He had a gun in his hand and was pointing it directly at Holmes. She warned Rogers to duck because "Charles has a gun." Appellant fired at Holmes but the shot missed as Rogers pushed her safely off the porch. Appellant fired at Rogers but that shot also missed its target. Gail Keene then ran out of her grandmother's front door and jumped across the porch rail to the porch next door. She threw her arms around appellant and pleaded "[D]rop the gun, that was her brother, don't shoot him." Appellant ignored her pleas, shot Keene in the chest and as Rogers was approaching his injured sister, appellant fired two more shots. Both struck Rogers. As both victims lay bleeding, appellant walked into the street, turned, and ran away. Keene recovered from her injuries but Rogers died about one month later from infection caused by his gunshot wounds.

Appellant also testified at trial. According to him, he retrieved the shotgun after Rogers had broken the door. He testified he "didn't pull the trigger [of the shotgun] because I was afraid of him. I pulled the trigger because I was that angry." After the gun failed to discharge, appellant stated he retrieved the second firearm and followed Rogers "to see if he was doing any harm to [Gail Keene], and if he was going to pay for my door...." ³

Appellant testified that as he was approaching Keene's grandmother's house he saw Holmes exit. He heard her shout "He's got a gun." Fearing that Rogers was the subject of the warning, appellant jumped up on the porch of the house next door to protect himself. Appellant thought Rogers was reaching for a weapon and responded by firing a shot but "not directly at him." Keene then came out of the house, jumped over the bannister, and started to wrestle with appellant. Rogers joined the struggle. The gun fired several times striking Rogers and Keene. Keene, who subsequently married appellant, testified similarly to his version of the struggle. Both testified the shootings were accidental.

Following trial by jury appellant was found guilty of murder in the third degree for killing Rogers, aggravated assault for shooting Keene, simple assault for shooting at Holmes, and possession of an instrument of crime, generally. He received terms of imprisonment of ten to twenty years for murder, two and one-half to five years on the weapons charge, two and one-half to five years for aggravated assault and one to two years for simple assault. ⁴

II.

Appellant argues his trial counsel was ineffective for not excepting when the trial court failed to instruct the jury on the complete statutory definition of voluntary manslaughter. Although the trial court charged the jury on the traditional definition of voluntary manslaughter, namely, a "heat of passion" killing, 18 Pa.C.S. § 2503(a), the court did not instruct on the "unreasonable belief killing justifiable" voluntary manslaughter defined in the Crimes Code. 18 Pa.C.S. § 2503(b). ⁵ According to that definition, a killing perpetrated under an unreasonable belief that it is justified reduces the crime from murder to manslaughter.

Appellant argues that "whatever the nature of the evidence" a defendant charged with murder "has an unconditional right on request to an instruction on the complete statutory definition of the offense of voluntary manslaughter." Commonwealth v. Manning, 477 Pa. 495, 499, 384 A.2d 1197, 1199 (1978). In Manning we reasoned that right was a necessary extension of 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). ⁶ In Jones we addressed a killing under the 1939 Penal Code.

The 1939 Penal Statute and those statutes preceding it did not attempt to define the crimes of murder and voluntary manslaughter, but rather incorporated the concepts of the common law.... Part of our common law heritage in this regard was the principle that the jury always has the power under a murder indictment to return a verdict of voluntary manslaughter although the classical requirements of voluntary manslaughter were absent. .... This principle was a corollary to the rule that upon an indictment for a particular crime, the defendant may be convicted of a lesser offense included within it.

Commonwealth v. Manning, supra, at 501, 384 A.2d at 1200 (dissenting opinion of Nix, J.) (citations omitted) (footnote omitted).

As noted by Mr. Justice Nix, the purpose of the common law rule that a jury considering an indictment for murder may find a verdict of voluntary manslaughter was two-fold:

First, it was intended to prevent the prosecution from failing where some element of the crime of murder was not made. Second, it was designed to redound to the benefit of the defendant, since its effect is actually to empower the jury to extend mercy to an accused by finding a lesser degree of crime than is established by the evidence.

Commonwealth v. Jones, supra, at 569, 319 A.2d at 146 (footnotes omitted).

Because of those common law concepts and to obtain "consistency", Mr. Justice Nix, the author of the Opinion in Support of Affirmance in Jones, stated, "a defendant under indictment of murder will be entitled, upon request, to have the jury advised of its power to return a verdict of voluntary manslaughter." Id. at 573-574, 319 A.2d at 148 (emphasis in original). As stated previously, Jones was decided pursuant to the 1939 Penal Code. Dissenting in Manning, Mr. Justice Nix observed the Manning killing was governed by the 1972 Crimes Code. The Code defines voluntary manslaughter as including not only traditional common law "heat of passion" killings but also those killings committed under unreasonable belief that the circumstances justify the act. By viewing Jones as mandating a like result in Manning we overlooked not only the change in our statutory law but also the salutary rule that "a trial court should not instruct the jury on legal principles which have no application to the facts presented at trial." Commonwealth v. White, 490 Pa. 179, 182, 415 A.2d 399, 400 (1980). ⁷ See also, United States ex rel. Matthews v. Johnson, 503 F.2d 339, 351-352 (3d Cir.1979) (dissenting opinion of Circuit Judge Kalodner),cert. denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975); United States v. Dougherty, 473 F.2d 1113, 1133 (D.C.Cir.1972) ("The jury's role was respected as significant..., but it was...