Com. v. Jennings

• Decision Date: 07 January 1971
• Citation: 442 Pa. 18,274 A.2d 767
• Parties: COMMONWEALTH of Pennsylvania v. Theodore JENNINGS, Appellant.
• Court: Pennsylvania Supreme Court

Page 767

274 A.2d 767

442 Pa. 18

COMMONWEALTH of Pennsylvania v. Theodore JENNINGS, Appellant.

Supreme Court of Pennsylvania.

Jan. 7, 1971.

Rehearing Denied March 26, 1971.

Harry F. Dunn, Jr., Media, for appellant.

Ralph B. D'Iorio, Asst. Dist. Atty., Chief, Appeals Division, Stephen J. McEwen, Jr., Dist. Atty., Vram Nedurian, Jr., Anna I. Vadino, Asst. Dist. Attys., Media, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

BELL, Chief Justice.

Appellant, Theodore Jennings, was indicted for the murder of Mary Fryer in the City of Chester, Pennsylvania, on November 28, 1968. He was convicted of murder in the second degree and was sentenced to a term of from six to fifteen years and to pay a fine of $1,000. From the Judgment of Sentence, defendant took this appeal.

Appellant and the deceased has livied together for eleven or twelve years prior to September 1968, when they separated. Four children were born to them during this period. About six months prior to her death, appellant wrote a letter to the deceased in which he stated that he had purchased a gun to kill her but would not do so because he was still in love with her. Additionally, appellant had threatened and physically beaten the deceased on numerous occasions and was arrested at least four times as the result of these beatings.

The Commonwealth's evidence showed that on November 27, 1968, the night preceding the killing, Mary Fryer left her home and was seen driving away with appellant in appellant's automobile. The automobile was 'zigzagging' as it left the deceased's home.

Appellant's testimony can be summarized as follows: Appellant denied seeing the deceased on the evening of November 27. Sometime after midnight, in the early morning hours of November 28, 1968, Mary Fryer came to appellant's residence at 1800 West Second Street. The two shared a bottle of gin and engaged in sexual intercourse. After the deceased got out of bed and began to dress, she told appellant that she was pregnant but did not want to have the baby. She also stated that she was dying from cirrhosis of the liver and that before she died she was 'going to kill you (appellant)'. Appellant, upon hearing a clicking sound, turned around and saw deceased standing there pointing at him the pistol which he kept in a drawer under his bed. When she refused to respond to his pleas to drop the gun, he fell out of the bed onto the floor, and when she again said that she was going to kill him, he reached up to push the gun away from her. In the ensuing struggle the gun discharged and she fell to the floor, bleeding profusely. He put on his trousers and then picked her up and laid her on the bed. He then ran to the nearest telephone, which was two blocks down the street, to contact the police. After he had phoned the police, he ran back to his home, and after looking at the deceased, went outside to await the police.

Officers Sudler and Owens, of the Chester Police Department, arrived at appellant's residence at approximately four-thirty in the morning. Both appellant and Sudler agreed that upon their arrival appellant stated, 'We struggled for the gun and it went off.' After Sudler had testified that appellant told him that 'he had shot her' while pointing to the left side of her neck, appellant testified that one of the officers asked him where deceased was shot and that he pointed at her and said, 'She is shot there.'

Appellant first contends that the Court below committed reversible error in its charge to the jury with respect to voluntary manslaughter. The relevant portion of the charge is as follows: 'Now, Members of the Jury, since Voluntary Manslaughter is embraced within the terms of the Indictment which you are considering, you must know what is meant by Voluntary Manslaughter. The crime of Voluntary Manslaughter is of a lesser grade than that of Murder. It consists in the unlawful killing of another without malice, express or implied. That means Without a direct intent to kill and without hardness of heart, or cruelty, or recklessness of consequences, or a mind regardless of social duty. The act of killing must, of course, be voluntary; the very name of the crime implies that; Voluntary Manslaughter. Because Voluntary Manslaughter involves an intentional act, confusion sometimes exist(s) in the Jury's mind concerning the differences between that crime and the crime of Murder of the First Degree. If you bear in mind that Manslaughter is never attended by legal malice, that is, By a direct intent to kill ^* or by depravity of heart or cruelty or recklessness of consequences, you will not go astray. Voluntary Manslaughter is wilful, but it is necessary that the surrounding circumstances take away every evidence of cruel depravity and wanton cruelty. Therefore, to reduce an intentional blow or wound which results in death to Voluntary Manslaughter, there must be either a sufficient cause for provocation, or a state of rage or passion without time to cool and placing the accused beyond the control of his reason and suddenly impelling him to do the deed. The word 'passion' in the sense in which it is used here includes such things as anger or terror, provided such a degree of intensity is present as to obscure temporarily the reason of the person affected. Passion means any of the emotions of the mind, such as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection.

'Under the evidence, if you are satisfied beyond a reasonable doubt that the Commonwealth has proved the essentials, you may bring in a verdict of Voluntary Manslaughter. That is a question for you and we leave this entirely within your good judgment. It is for you and you alone to determine whether, from the facts of this case, there was Murder of the First Degree, Murder of the Second Degree, or Voluntary Manslaughter, and you will have the full right to give all these factors your consideration and attention.'

Appellant contends that the italicized portions of the charge were prejudicial in that they misstated the law and made it difficult for the jury to return a verdict of voluntary manslaughter. We agree that it is erroneous to charge that 'manslaughter is never attended by a direct intent to kill.' It is well established in this Commonwealth that voluntary manslaughter may be consistent with an intent to kill. For example, where a defendant acts under an unreasonable fear that he is in danger of serious bodily harm, there may be a direct and specific intent to kill, and yet the offense may constitute voluntary manslaughter. Commonwealth v. Jordan, 407 Pa. 575, 585, 181 A.2d 310, 316; Commonwealth v. Thompson, 389 Pa. 382, 394, 133 A.2d 207, 214. Moreover, a defendant may be guilty of voluntary manslaughter when he has a direct and specific intent to kill, but the killing is the result of legal passion. Commonwealth v. Walters, 431 Pa. 74, 82, 244 A.2d 757, 762. See, also, Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289.

Appellant urges that we hold the charge was so erroneous and prejudicial that it constituted reversible error and requires the grant of a new trial. We disagree. We reiterate that instructions which inform the jury that voluntary manslaughter cannot be attended by a direct intent to kill are erroneous and should not be given. However, after the Judge had given his charge to the jury, he asked counsel if there were any suggestions or corrections. At this time, counsel for appellant discussed the 15 points for charge which he had submitted. He withdrew 13 of them. The errors now raised on appeal were not mentioned in the two points which he did not withdraw. Nor did he object to those portions of the charge which he now assigns as error. Furthermore, appellant's failure to take a specific exception to this portion of the charge, as required by Pa.R.Crim.P. 1119(b), 19 P.S. Appendix forecloses our consideration of this issue on this appeal.

Pa.R.Crim.P. 1119(b) provides: '(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury.'

Before the effective date of Rule 1119(b), namely, August 1, 1968, it was well settled that in certain limited situations this Court would consider on appeal matters which were unexcepted to in the lower Court, including trial errors as well as alleged erroneous instructions. The law in this regard was well summarized in Commonwealth v. Williams, 432 Pa. 557, pages 563--564, 248 A.2d 301, 304, where the Court said: 'Because of fairness to all the parties to the litigation and the speedy administration of trials and of Court business, it is a well established General rule ^* that an appellate Court will not reverse (1) on a point (a) Where no exception was taken* by appellant (Commonwealth v. Stowers, 363 Pa. 435, 437, 70 A.2d 226; Commonwealth v. O'Brien, 312 Pa. 543, 168 A. 244; Commonwealth v. Donough, 377 Pa. (46) page 53, 103 A.2d 694, supra; Leech v. Jones, 421 Pa. 1, 2, 218 A.2d 722; Millili v. Alan Wood, 418 Pa. 154, 156, 162, 166, 209 A.2d 817; Patterson v. Pittsburgh Railways Co., 322 Pa. 125, 185 A. 283; Commonwealth v. Scott, 284 Pa. 159, 162, 130 A. 317); or (b) to which Only a general exception was taken ^* (Commonwealth v. Smith, 374 Pa. 220, 225, 97 A.2d 25; Enfield v. Stout, 400 Pa. 6, 14, 161 A.2d 22; Spitzer v. P.T.C., 348 Pa. 548, 550, 36 A.2d 503; Ellsworth v. Lauth, 311 Pa. 286, 290, 166 A. 855; Medvidovich v. Schultz, 309 Pa. 450, 453, 164 A. 338); or (2) On a ground not raised in or by the Court below' (Commonwealth v. Robinson, 317 Pa. 321, 323, 176 A. 908; White v. Moore, 288 Pa. 411, 416--417, 136 A. 218).

'However, this general rule will not be applied ^* where there is basic and fundamental error which effects the merits or justice of the case, or, as some cases...