Com. v. Ford
Decision Date | 07 October 1977 |
Citation | 378 A.2d 1215,474 Pa. 480 |
Parties | COMMONWEALTH of Pennsylvania v. Russell FORD, Appellant. . Re |
Court | Pennsylvania Supreme Court |
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaele McLaughlin Barthold, Asst. Dist. Atty., for appellee.
Before JONES, C. J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appellant Russell Ford was indicted on separate counts for murder, voluntary manslaughter and involuntary manslaughter in connection with the killing of Leon Williams on July 2, 1973, in Philadelphia. Appellant filed timely pre-trial motions to suppress certain statements given to the police and to quash the indictment. The suppression motion was granted after a hearing and the motion to quash denied. At the beginning of trial, the Commonwealth's attorney informed the court that he was proceeding on the murder count in the indictment and that the involuntary manslaughter charge would be nol-prossed at "the proper time." Appellant's counsel did not then object to this procedure or seek to have the general charges consolidated for trial. At the conclusion of the testimony, however, defense counsel submitted to the court a point for charge on the elements of involuntary manslaughter. This was denied. The jury found appellant guilty of voluntary manslaughter. Following denial of post-trial motions appellant was sentenced to imprisonment for a term of one and one-half to ten years. This appeal followed.
Appellant has raised multiple assignments of error. Because of our disposition of this appeal on the issue of appellant's right to a charge on the offense of involuntary manslaughter, we do not reach the merits of any other issue except the claim that the evidence was insufficient to support the verdict. We are satisfied that the evidence was sufficient. 1
With respect to the requested point for charge on the elements of involuntary manslaughter, we have today stated that
" . . . (w)here in a trial of a case on a murder indictment there is present from whatever source evidence which would permit the fact-finder to return a verdict of involuntary manslaughter, a defendant is entitled, upon request, to a charge on the elements of that offense." Commonwealth v. Polimeni, --- Pa. ---, 378 A.2d 1189 (1977) (1976) (opinion of Pomeroy, J., joined by Eagen, C. J., announcing decision of the Court).
The issue before us, then, is simply whether in this case there was evidence on which the fact-finder could rationally have based a verdict of involuntary manslaughter. We hold that there was. 2
The defendant's testimony as accurately summarized in the opinion of the trial judge, was as follows:
"The defendant also testified that he did not intend to kill the decedent, that he felt sorry for him because 'he was a junkie and he had to steal, it was like a bad habit.' " Opinion at pp. 7-11.
The evidence recited above is similar to the testimony offered in Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975), wherein the defendant testified that the fatal shot had been accidentally fired while she and the victim had been struggling for possession of a gun. In Moore, we held that evidence of this nature was sufficient to justify a verdict of involuntary manslaughter and, therefore, to make mandatory upon the defendant's request the consolidation for trial of an involuntary manslaughter indictment with the murder indictment. Because the evidence here also is sufficient to support a verdict of guilty of involuntary manslaughter, our holding in Polimeni, supra, compels the conclusion that the requested instruction should have been given notwithstanding that the prosecution was proceeding on the murder count only.
Finally, we do not believe that the failure of this appellant to request consolidation for trial of the counts in the indictment or to object to the Commonwealth's election at the commencement of trial to nol-pros the involuntary manslaughter count constituted a waiver of appellant's right to request a charge on that defense. While a waiver holding might have been the result in the framework of our decisions in Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975) and Commonwealth v. Stock, 463 Pa. 547, 345 A.2d 654 (1975), the rationale of the Polimeni holding, supra, does not depend upon the existence of an outstanding indictment for involuntary manslaughter; whether or not the defendant has been separately indicted for involuntary manslaughter in addition to murder is an irrelevancy. 3
Judgment of sentence vacated and new trial granted.
For the reasons stated in Commonwealth v. Garcia, --- Pa. ---, 378 A.2d 1199 (1976) (plurality opinion), I believe that a defendant is entitled upon request to a charge on...
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Commonwealth v. Garcia
... ... at ---, 378 A.2d at ... In the case ... at bar, as in Commonwealth v. Polimeni, supra, and ... Commonwealth v. Ford, 472 Pa. 542, 372 A.2d 821 (1977), ... also decided this date (J.71), a jury could rationally have ... found the appellant guilty of involuntary ... ...
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