Com. v. Simon

• Decision Date: 27 November 1968
• Citation: 248 A.2d 289,432 Pa. 386
• Parties: COMMONWEALTH of Pennsylvania v. Thelma SIMON, Appellant.
• Court: Pennsylvania Supreme Court

Page 289

248 A.2d 289

432 Pa. 386

COMMONWEALTH of Pennsylvania v. Thelma SIMON, Appellant.

Supreme Court of Pennsylvania.

Nov. 27, 1968.

Rehearing Denied Dec. 30, 1968.

Malcom W. Berkowitz, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Alan J. Davis, Asst. Dist. Atty., Chief, Appeals Div., James D. Crawford, Asst. Dist. Atty., Philadelphia, for appellee.

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

ORDER OF THE COURT

PER CURIAM.

The Court being evenly divided, the judgment is affirmed.

MUSMANNO, J., did not participate in the decision of this case.

ROBERTS, J., files an opinion in support of the order.

O'BRIEN, J., files a dissenting opinion in which COHEN, J., joins.

OPINION IN SUPPORT OF THE ORDER

ROBERTS, Justice.

This is an appeal from a 1962 conviction of first degree murder in which the jury fixed the penalty at life imprisonment. The appellant assigns several reasons why this Court should reverse the jury's determination and grant her a new trial.

The first two involve claimed errors in the court's charge to the jury. Initially appellant contends that the court incorrectly instructed the jury that a finding of intent to kill on the part of the defendant would preclude a verdict of voluntary manslaughter. It is, in fact correct that twice the judge gave instructions which approximate this assertion. First: 'Voluntary manslaughter consists in the unlawful killing of another without malice * * * and that means without direct intent to kill. * * *'; later: 'If you bear in mind that manslaughter is never accompanied by legal malice, that is, by a direct intent to kill. * * *' However, the Commonwealth replies that if the charge is studied in its entirety, the additional language cleared up any misconception. Specifically, the Commonwealth relies on this part of the charge: 'The act of killing must, of course, be voluntary. That is what the very name of the crime implies, because voluntary manslaughter involves an intentional act.'

While it is our conclusion that the charge read in its entirety does not require reversal of this conviction, as delivered, the instructions were not a model of clarity on this aspect of the case. The law is well settled in this state that a conviction for voluntary manslaughter may be entirely consistent with an intent to kill. First, in the situation where a defendant acts under an unreasonable fear that he is in danger of serious bodily harm, there may be a specific intent to kill, and yet the offense may constitute voluntary manslaughter. Commonwealth v. Jordan, 407 Pa. 575, 585, 181 A.2d 310, 316 (1962); Commonwealth v. Thompson, 389 Pa. 382, 394, 133 A.2d 207, 212 (1957). The same result occurs in the second instance where the defendant may have formed a specific intent to kill, which intent was the product of blind passion or rage. Commonwealth v. Walters, 431 Pa. 74, 82, 244 A.2d 757, (1968). Therefore, a trial court should make perfectly clear to the jury that, under given circumstances, the presence of an intent to kill should not preclude a verdict of voluntary manslaughter.

On the other hand, our review of this charge satisfies us that on this record the portions of the charge complained of were not of such a nature to justify the grant of a new trial. The situation which appellant claims was created by the trial court's charge could have been remedied by calling it to the attention of the court with an appropriate request for clarification. This was not done; nor was any point for charge submitted. The general exception lodged by trial counsel at the conclusion of the charge is never a proper vehicle to preserve for consideration on appeal alleged errors in the charge, when a timely objection or request could have resulted in a correction of the trial court's unclear or inadequate instruction. See Pa.R.Crim.P. 1119, 19 P.S. Appendix.

The second alleged error is the court's failure to instruct the jury that if they found the defendant acted under an Unreasonable belief that she was in danger of serious bodily harm, they should find her guilty of voluntary manslaughter. This instruction would have been a complement to the one actually given discussing the Reasonable belief necessary to establish self defense and yield a not guilty verdict. The court, indeed, did fail to discuss this item in the portion of the charge dealing with the defense of self defense; but when the court charged on voluntary manslaughter, it included the unreasonable belief defense which appellant now contends was never presented. The court charged:

'(T)o reduce an intentional blow or wound which causes death to voluntary manslaughter, there must be either sufficient cause for provocation or a state of rage or passion without time to cool * * * The word passion * * * includes such things as anger or terror * * *.' Passion means any of the emotions of the mind, such as rage, sudden resentment, or terror, rendering the mind incapable of cool reflection.'

Certainly this repetition by the court of these emotional states, especially terror, comprehends the situation where the defendant had an unreasonable fear. If the jury had believed that the appellant had an unreasonable fear, they could reasonably have been expected to find appellant guilty of voluntary manslaughter under this charge. In addition, if appellant's counsel believed that this explanation of voluntary manslaughter was not sufficiently explicit, we reiterate that the appropriate time to seek clarification would have been when the jury was still in the courtroom and the judge in a position to further amend his instructions. Counsel may not sit silently by at the conclusion of a charge which he thinks is incorrect. 'A proper administration of justice requires that new trials be not granted on errors which counsel had ample opportunity to correct.' Segriff v. Johnston, 402 Pa. 109, 113, 166 A.2d 496 499 (1960); see Lobalzo v. Varoli, 422 Pa. 5, 7, 220 A.2d 634, 636 (1966) (concurring opinion).

This reasoning is entirely consistent with the new Rule of Criminal Procedure 1119 which 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. * * *'* Although this rule was not in effect at the time of appellant's trial, it reflected the existing case law at the time of its adoption. Commonwealth v. Richardson, 392 Pa. 528, 140 A.2d 828 (1958); Commonwealth v. Donough, 377 Pa. 46, 103 A.2d 694 (1954).

The dissenting opinion argues that these first two arguments by appellant should result in a reversal of the conviction. It states the general rule to be that this Court will not reverse on a ground not raised in the court below or on a point to which no exception was taken by appellant, unless 'there is basic and fundamental error which affects the merits or justice of the case.' This standard is both incorrect and unworkable. First, the relevant standard must be Not how severe was the error, But how easily can it be corrected. We are attempting to grant to each defendant as fair a trial as possible. This must be of necessity something short of an error-free trial. Therefore we must insist that counsel object to all of those events which counsel alleges to be error so that the trial court is afforded an opportunity to remedy the alleged deficiencies which the trial court determines are valid. Then, this Court will reverse for (1) those errors which were so severe that any attempt to correct them could not dispel the earlier taint and (2) those objections which the trial court overruled and which we find meritorious. Only in this way will the administration of criminal justice require reversals and retrials in those cases where it is absolutely essential. Further, the use of this inquiry will prevent counsel for defendant from passively allowing error to creep into the proceedings so that in case he fails to obtain an acquittal for his client, he will have established a sufficient record for the purpose of obtaining a retrial.

Second, the standard proposed by the dissent is simply unworkable. This can be demonstrated very easily. The dissent has applied their standard to three different situations before this Court involving 'failure to object' problems; when examined, the total lack of parameters for employing their test becomes apparent. First, in the instant case, the 'fundamental error' is an ambiguous charge; the dissent believes this error is sufficiently grievous to justify reversal even though there was no objection. Next is Commonwealth v. Williams, Pa., 248 A.2d 301 (1968), another case involving an incorrect charge. In Williams the trial judge committed an error when he told the jury '* * * the burden is on the Commonwealth to establish his guilt in the commission of this crime. This is their burden. 'If you feel that their testimony does not substantially do that, based on the credibility of the witnesses, Then you are not required to bring in a conviction. " This remark was also held to be 'basic and fundamental' error under the test espoused by the dissent and therefore resulted in a reversal despite trial counsel's failure to object.

The third case is Commonwealth v. Scoleri, Pa., 248 A.2d 295 (1968). In this case the appellant claimed that he was denied the rights guaranteed to him under Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967), in which this Court held that it was denial of defendant's right to the assistance of counsel to prohibit his speaking with his trial attorney during the noon recess while defendant was being cross-examined. Essentially the same thing occurred in Scoleri; the court instructed the defendant in the presence of the jury that he was not to talk to trial counsel during the recess. Thus there were two serious errors in Scoleri: (1) defendant's right to counsel was abridged and (2) the jury may have been...