Com. v. Gartner
Decision Date | 23 January 1978 |
Citation | 475 Pa. 512,381 A.2d 114 |
Parties | COMMONWEALTH of Pennsylvania v. Robert D. GARTNER, Appellant. COMMONWEALTH of Pennsylvania v. Randy Lee PFAFF, Appellant. |
Court | Pennsylvania Supreme Court |
Michael J. Wherry, Grove City, for appellant in No. 30 March Term, 1975.
Paul D. Shafer, Jr., Dist. Atty., Ballard F. Smith, Jr., Asst. Dist. Atty., Meadville, for appellee.
Before JONES, C. J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
After a joint trial, appellants Robert Gartner and Randy Pfaff were convicted by a jury of murder of the second degree 1 and aggravated assault. 2 Post-verdict motions were denied and sentences covering both offenses were imposed. 3 These appeals followed. 4 We affirm appellant Pfaff's convictions for both murder and aggravated assault. We reverse appellant Gartner's conviction for murder and affirm his conviction for aggravated assault. Because we are unable to determine what part of the sentence imposed on appellant Gartner was for the conviction on aggravated assault, we remand for re-sentencing on that conviction.
The murder convictions will be considered in Part I of this opinion, the common claims of Gartner and Pfaff relating to the assault convictions in Part II, and additional claims made by Gartner relating to the assault conviction in Part III.
The trial court's opinion on post-verdict motions summarized the facts:
Appellant Gartner contends that he must be granted a new trial on the charge of murder because the trial court refused a request that the jury be instructed on involuntary manslaughter. 6 We agree.
The trial court defined involuntary manslaughter in its charge, but instructed the jurors that they could not return a verdict of guilty to involuntary manslaughter because "you may not find a person guilty of a crime for which he is not charged under the circumstances in this case." This instruction was erroneous. In every prosecution for criminal homicide brought pursuant to the Crimes Code, 7 a defendant upon request is entitled to a jury instruction on involuntary manslaughter. Commonwealth v. Smith, 474 Pa. 559, 379 A.2d 96 (1977); Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (plurality opinion). The rationale of this rule is that under the Crimes Code, involuntary manslaughter is a lesser included offense of murder and thus is a permissible verdict when murder is charged. The court erred in its instruction because when an offense is a permissible verdict, the defendant is entitled to have the jury informed of its authority to return such a verdict. Commonwealth v. Covil, 474 Pa. 375, 378 A.2d 841 n. 6 (1977) (voluntary manslaughter). Because the trial court instructed the jury that it could not return a verdict which under the Crimes Code it had the right to return, judgment of sentence on the conviction of murder of the second degree must be reversed and a new trial granted appellant Gartner.
Appellant Pfaff, however, has not raised on this appeal the trial court's refusal to instruct the jury on involuntary manslaughter. The issue therefore is not before us on his appeal. We therefore must consider his contention that the trial court erred in refusing to instruct the jury on voluntary manslaughter. In Commonwealth v. Jones 457 Pa. 563, 319 A.2d 142 (1974) (plurality opinion), this Court held that a defendant tried for murder is entitled upon request to an instruction informing the jury of its power to return a verdict of voluntary manslaughter. Jones was decided on May 2, 1974; appellant Pfaff's trial began on February 13, 1974. Three members of this Court would apply Jones to all cases on direct appeal, including appellant Pfaff's. Commonwealth v. Cain, 471 Pa. 140, 171, 369 A.2d 1234, 1250 (1977) (...
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