Com. v. Polimeni

Citation474 Pa. 430,378 A.2d 1189
PartiesCOMMONWEALTH of Pennsylvania v. Michael C. POLIMENI, Appellant.
Decision Date07 October 1977
CourtUnited States State Supreme Court of Pennsylvania

John J. Hickton, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.

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

OPINION

POMEROY, Justice.

Following a trial by jury, appellant Michael Polimeni was found guilty of voluntary manslaughter in connection with the shooting death of one Kenneth Patterson. Post-verdict motions were denied, and appellant was sentenced to a term of not less than three nor more than seven years imprisonment. In this direct appeal, Polimeni raises two issues: the first, a challenge to the array of the petit jury in the court of Common Pleas of Allegheny County; the second, a denial of a requested charge on involuntary manslaughter. We find the second claim to be meritorious and that a new trial must be had. Accordingly, we do not reach the merits of appellant's challenge to the array of the petit jury.

I.

Appellant contends that he was denied a fair trial because the trial judge declined to charge the jury, as requested, on the offense of involuntary manslaughter. 1 The point for charge was refused because the appellant had not been indicted for and thus could not properly be convicted of that offense. The trial court's action was in accord with the prevailing case law in this Court. See, e.g., Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970); Commonwealth v. Reid, 432 Pa. 319, 247 A.2d 783 (1968); Commonwealth v. Edwards, 431 Pa. 44, 244 A.2d 683 (1968); Commonwealth v. Soudani, 398 Pa. 546, 159 A.2d 687 (1960); Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343 (1953); Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540 (1951); Commonwealth v. Hardy, 347 Pa. 551, 32 A.2d 767 (1943); Hilands v. Commonwealth, 114 Pa. 372, 6 A. 267 (1886); Walters v. Commonwealth, 44 Pa. 135 (1863). But see and compare Commonwealth v. Thomas, 403 Pa. 553, 170 A.2d 112 (1961).

We have recently held that where it appears that the prospective evidence would support a verdict of involuntary manslaughter, it is error for the trial court to refuse to consolidate for trial an indictment for murder and voluntary manslaughter and an indictment charging involuntary manslaughter. Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975). See also Commonwealth v. Stock, 463 Pa. 547, 345 A.2d 654 (1975). The opinions by Mr. Justice EAGEN announcing the judgments of the Court in Moore and Stock did not address, because it was not necessary to do so, the issue now before us, i.e., whether, absent an indictment for involuntary manslaughter, a charge on that offense is required if properly requested. On the facts presented in those cases, the failure to consolidate indictments was by itself a sufficient ground for new trials. 2 We have concluded, however, that the rationale of the Moore and Stock decisions is equally applicable to the case at bar.

The basis of the ruling in Moore, as set forth in the plurality opinion of Mr. Justice Eagen, is that

" . . . if a jury, giving credence to a defendant's version of an encounter could find that defendant guilty of involuntary manslaughter, fundamental fairness dictates the consolidation, upon request, of that indictment with the murder and voluntary manslaughter indictments as possible jury verdicts." 463 Pa. at 322, 344 A.2d at 852-853.

The practical consequence, indeed, the purpose of this ruling was to permit a charge of involuntary manslaughter. In the words of the plurality opinion, "failure to so acquaint the jury prevents it from operating with full knowledge of the relevant law and precludes the defendant from having a fair trial." 3 Id. We hold, therefore, that where 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. 4

It is arguable that the result we reach today could be derived through application of the common-law concept of lesser included offenses 5 and a determination that involuntary manslaughter, like voluntary manslaughter, is a lesser included offense of murder. 6 Voluntary manslaughter has long been so regarded in Pennsylvania, 7 and authority elsewhere would support the proposition that, properly considered, involuntary manslaughter is also a lesser included offense of murder. 8 We need not, however, consider whether the common law rule in Pennsylvania should be changed, for we are of the opinion that our holding in the case at bar is required by the new Pennsylvania Crimes Code, 18 Pa.C.S. § 101 et seq., 9 which was in effect at the time of the commission of the crimes here involved. This case being one of first impression under the Code, 10 it is necessary to consider the structure of that legislation and the definitions therein contained by which we must be guided.

The Crimes Code in Chapter 25, for the first time in Pennsylvania, establishes an offense known as "criminal homicide". A person is guilty of this crime "if he intentionally, knowingly, recklessly or negligently causes the death of another human being." 18 Pa.C.S. § 2501(a). The Code then states that "(c) riminal homicide (is) classified as murder, voluntary manslaughter, or involuntary manslaughter." Ibid. § 2501(b). (Emphasis supplied.) Murder is in turn divided into three categories: murder of the first degree, murder of the second degree, and murder of the third degree. Ibid. § 2502. 11 Murder of the first degree and of the second degree under the Crimes Code together correspond to murder in the first degree under prior law; the new murder of the first degree is an intentional killing, while the new murder of the second degree is felony-murder. Murder of the third degree is comprised of "all other kinds of murder" 18 Pa.C.S. § 2502(c) (Supp. 1977-1978), thus taking the place of the former murder in the second degree, which the Penal Code described in the same words. 12 The remaining two species of criminal homicide are voluntary manslaughter and involuntary manslaughter. They also are defined in the Crimes Code in the same basic terms as in prior law. 13 18 Pa.C.S. §§ 2503, 2504.

We think that the structure of Chapter 25 of the Crimes Code in which the above cited sections appear is such as to create one major homicide offense, that of criminal homicide, and that the several types of homicide, namely, murder of any of the three named degrees and voluntary and involuntary manslaughter are constituent subsidiary offenses within the single major offense. All grades of unlawful killing thus have been made lesser included offenses of the overall crime of criminal homicide. 14 The differences between the classifications are largely a function of the state of mind of the perpetrator. This becomes clear when one examines the ranking for culpability purposes of the several categories of criminal homicide. 15 Premeditated, intentional killing and killing in the course of committing a felony continue to be equated as the most highly culpable classes of criminal homicide. 16 A felonious and malicious killing without a specific intent to take life (murder of the third degree, formerly second degree) is placed by the Code in the next highest degree of culpability, a felony of the first degree. 18 Pa.C.S. § 2502(c). Next in seriousness is a killing which, although intentional, is committed when the actor is under the influence of a sudden and intense passion resulting from serious provocation or is acting in the unreasonable belief that the circumstances would justify a killing. This subdivision of criminal homicide, voluntary manslaughter, is punishable as a felony of the second degree. 18 Pa.C.S. § 2503. Involuntary manslaughter, with which we are here concerned, is committed when the death of a person is caused as a direct result either of a lawful act or of an unlawful act done in a "reckless or grossly negligent manner," 18 Pa.C.S. § 2504. 17 In the scale of culpability, such a killing is a misdemeanor of the first degree. Id. § 2504(b).

Like murder of the third degree, involuntary manslaughter is an un intentional killing. See Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973). What is more important for our present purposes is the fact that under the Crimes Code it is a killing which requires a state of mind which is in effect simply a gradation on the ascending scale of culpability culminating in malice. The state of mind which characterizes involuntary manslaughter is not malicious; it is referred to as "criminal negligence" and is evidenced by acts, whether lawful or unlawful, done in a "reckless or grossly negligent" manner as those terms are defined. See 18 Pa.C.S. § 2504; see also n. 17, supra; Commonwealth v. Jones, 452 Pa. 569, 578-79, 308 A.2d 598 (1973). In Commonwealth v. Aurick, 342 Pa. 282, 288-89, 19 A.2d 920, 923 (1941), this Court stated that to constitute involuntary manslaughter " '(t)he negligence must be such a departure from what would be the conduct of an ordinary prudent or careful man under the circumstances as to evidence a disregard of human life or an indifference to consequences.' " See also Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961); Commonwealth v. LaPorta, 218 Pa.Super. 1, 272 A.2d 516 (1970); Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968); Commonwealth v. Hartle, 200 Pa.Super. 318, 188 A.2d 798 (1963).

We thus hold, to summarize, that because the legislature has classified both murder and involuntary manslaughter as subdivisions of the major offense of criminal homicide, a defendant who has been charged with murder is entitled on request to have the jury instructed on the elements of involuntary...

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