Com. v. McClendon

• Decision Date: 28 April 1978
• Citation: 385 A.2d 1337,478 Pa. 108
• Parties: COMMONWEALTH of Pennsylvania v. James McCLENDON, Appellant (two cases).
• Court: Pennsylvania Supreme Court

Page 1337

385 A.2d 1337

478 Pa. 108

COMMONWEALTH of Pennsylvania v. James McCLENDON, Appellant (two cases).

Supreme Court of Pennsylvania.

Submitted Jan. 11, 1977.

Decided April 28, 1978.

[478 Pa. 109] Joshua M. Briskin, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Jane Greenspan, Philadelphia, for appellee.

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

OPINION

MANDERINO, Justice.

On May 19, 1975, in a trial by jury, appellant, James McClendon, was found guilty of murder of the second degree, arson, and related charges. Post-verdict motions were denied, and appellant was sentenced to life imprisonment on the charge of second degree murder and to a concurrent term of ten to twenty years imprisonment on the arson charge. Appellant appealed his murder conviction to this Court, and his conviction for arson to the Superior Court, which transferred it here.

Appellant contends that the trial court improperly expressed to the jury an opinion as to the proper degree of guilt and so worded its instructions that the jury had no choice but to find appellant guilty of second degree murder. We agree with appellant's contention, reverse the judgment of sentence for murder of the second degree, and remand for a new trial limited to the murder charge. Our disposition of this appeal leaves undisturbed appellant's conviction for arson.

There is no dispute as to the facts. On November 18, 1974, appellant, for retaliatory reasons, threw four firebombs at or into decedent's home. Decedent and his wife were the only persons inside the house. Decedent's wife, who was working in the downstairs kitchen, successfully awakened the decedent who had been sleeping upstairs. She testified that with the living room already aflame, the decedent followed her down the stairs and into the kitchen, but when she reached the gate in the back yard, she turned around to discover that her husband had not continued out of the house. She returned inside and called for her husband, at which point he hollered down from the second floor, "I'm going to put my clothes on." His return upstairs proved fatal; rescuers discovered him there, dead from smoke inhalation and thermal burns of the body surface.

We agree with appellant that the trial court's instructions to the jury, which consisted of the original charge and two responses to requests for additional instructions, not only impressed upon the jury the court's opinion as to the appropriate degree of guilt, but also effectively precluded the jury from returning any other verdict except second degree murder.

In its original charge, the court stated:

"(I)f you find that the defendant committed arson and that arson was the cause of the death . . . he is guilty of murder of the second degree. If you find that the defendant is not guilty of arson or if you find that he was guilty of arson but that the arson was not a cause of the death of the decedent, you should consider the charges of third degree murder and voluntary manslaughter which I shall now define for you."

Hence, the jury was instructed that it should not consider third degree murder or voluntary manslaughter unless it found that appellant did not commit arson or that the arson, if committed, was not the cause of death. That is not the law in this Commonwealth.

The jury could have returned, pursuant to its mercy dispensing power or its awareness of extenuating circumstances, verdicts of either voluntary manslaughter or murder of the third degree even if it found appellant guilty of arson, and found that the arson caused the victim's death. Commonwealth v. Hill, 444 Pa. 323, 326, 281 A.2d 859, 860-61 (1971); Commonwealth v. Hoffman, 439 Pa. 348, 356-57, 266 A.2d 726, 730-31 (1970). See also Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617, 619-20 (1977).

At the conclusion of the trial court's original charge, the following colloquy took place:

"THE COURT: Gentlemen, are there any exceptions to the charge as already given?

(Prosecuting Attorney): I have no exceptions.

THE COURT: Do you have any exceptions, (defense counsel), to the charge as given?

(Defense Counsel): Well, yes, your Honor. The one about voluntary manslaughter. I don't know the exact words but whether or not the decedent contributed to his own death would not be of any value. But I don't remember the exact wording.

THE COURT: Well, the wording was that if the arson was the cause of the death, the defendant is guilty of second-degree murder. Even though the decedent may have contributed to his own death. I believe that is the law.

(Defense Counsel): I will take exception to that.

THE COURT: All right, is there anything else?

(Defense Counsel): No."

Whether defense counsel's above objection to the original charge raised the same issue now being raised is not entirely clear from the above colloquy. The issue now being raised, however, was clearly raised when the jury returned for additional instructions.

The court compounded the error in the original charge when it responded to the jury's first request for additional instructions. When the trial court was asked to repeat its instructions concerning murder of the second degree, murder of the third degree, and voluntary manslaughter, the trial court told the jury it could not find defendant guilty of arson and guilty of something less than second degree murder.

"If you find that the defendant is not guilty of arson or if you find that he was guilty of arson but that the arson was not a cause of the death of the decedent, you should consider the charges of third-degree murder and voluntary manslaughter. Let me repeat that. If you find that the defendant is not guilty of arson or if you find that he was guilty of arson but that the arson was not a cause of the death of the decedent, then you should consider and only then you should consider the charges of third-degree murder and voluntary manslaughter which I shall now define for you." (Emphasis added.)

After repeating the definitions of voluntary manslaughter and murder of the third degree, the trial court stated,

"(I)f you find in this case there is an independent felony that the defendant beyond a reasonable doubt committed arson endangering persons, then these definitions (voluntary manslaughter and murder of the third degree) are not applicable and the definition of second degree murder which I have read to you is applicable." (Emphasis added.)

Defense counsel immediately excepted to these instructions. Counsel's exception was that the court's instruction was a mandate to the jury to find appellant guilty of murder of the second degree if it found him guilty of the arson charge. Defense counsel's exception, in effect, was that the trial court effectively told the jury not to consider any verdict but second degree murder if arson was committed. Defense counsel's motion for a mistrial was denied.

Despite these unequivocal commands to the jury not to consider voluntary manslaughter or murder of the third degree if it found appellant guilty of arson and that the arson legally caused the death, the jury sent a second note to the court for additional instructions. The note read:

"If the defendant is guilty of arson, which is a felony, can three and four be applied within third-degree murder and voluntary manslaughter?"

In other words, the jury was still interested in the possibility of finding appellant guilty of arson yet not of second degree murder. Pursuant to Commonwealth v. Hill and Commonwealth v. Hoffman, supra, see also Commonwealth v. Whitfield, supra, the jury should have received an affirmative answer. Nevertheless, the trial court responded in the negative based on its own opinion that "logic" militated against these lesser verdicts. At a conference in chambers out of the hearing of the jury, the court discussed the jury's question with counsel as follows:

"It seems to me the appropriate answer to that is if they found the defendant guilty of arson and the arson caused the death, then voluntary manslaughter and third-degree murder are logically out."

When defense counsel objected to that assessment and remarked that such was not necessarily so, the court responded:

"I think it is logic but it may not be in terms of mercy."

Rather than inform the jury that it could find appellant guilty of arson yet find him guilty of something less than second degree murder, the court concluded its charge as follows:

"I am obliged first of all, to repeat to you that under the law the Court cannot direct a jury as to what verdict it...