Com. v. Thomas

• Decision Date: 09 November 1978
• Citation: 482 Pa. 312,393 A.2d 1122
• Parties: COMMONWEALTH of Pennsylvania v. Darryell THOMAS, Appellant.
• Court: Pennsylvania Supreme Court

Page 1122

393 A.2d 1122

482 Pa. 312

COMMONWEALTH of Pennsylvania v. Darryell THOMAS, Appellant.

Supreme Court of Pennsylvania.

Argued Sept. 30, 1977.

Decided Oct. 5, 1978.

Reargument Denied Nov. 9, 1978.

Lester G. Nauhaus, Paulette Balogh, Asst. Public Defenders, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Jacqueline M. Verney, Pittsburgh, for appellee.

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

ORDER OF COURT

PER CURIAM.

This Court is unanimously of the view that the judgment of sentence at No. 56 March Term, 1977, for aggravated assault, should be affirmed.

As to the involuntary manslaughter convictions appealed to No. 27 March Term, 1977, the six members of this Court who have participated in the consideration and decision of this case are equally divided. Mr. Chief Justice EAGEN, Mr. Justice POMEROY and Mr. Justice NIX would affirm the judgments of sentence. Mr. Justice O'BRIEN, Mr. Justice ROBERTS and Mr. Justice MANDERINO would reverse the judgments of sentence and award a new trial. The Court being equally divided, the judgments of sentence at No. 27 March Term, 1977, are also affirmed.

It is so ordered.

POMEROY, J., files an opinion in support of affirmance in which EAGEN, C. J., joins.

NIX, J., files an opinion in support of affirmance.

ROBERTS, J., files an opinion in support of reversal in which O'BRIEN, J., joins.

MANDERINO, J., files an opinion in support of reversal.

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

OPINION IN SUPPORT OF AFFIRMANCE

POMEROY, Justice.

The principal questions in this case are whether there was evidence in the record that would rationally sustain a verdict of involuntary manslaughter and, if not, whether the trial court was required nevertheless to give an involuntary manslaughter instruction to the jury upon the defendant's timely request. For the reasons that follow, I would answer both questions in the negative and affirm all the judgments of sentence.

Joseph Solomon, Arkinzie Solomon, and Leslie Watson were all shot in the chest during a fight in Pittsburgh on September 27, 1975. Arkinzie Solomon and Watson died of their wounds, while Joseph Solomon recovered. Appellant Darryell Thomas was charged, Inter alia, with two counts each of murder and voluntary manslaughter and one count of aggravated assault in connection with the incident and was found guilty by a jury of two counts of voluntary manslaughter and aggravated assault. ¹ Post-trial motions were filed and denied, and judgments of sentence entered. These appeals followed. ²

I.

It is now settled in prosecutions for criminal homicide under this Commonwealth's Crimes Code ³ that a defendant has the right upon request to an instruction on involuntary manslaughter at least where there is evidence that would rationally sustain such a verdict. Commonwealth v. Terrell, --- Pa. ---, 393 A.2d 1117 (1978) (opinion announcing the judgment of the Court); Commonwealth v. Ford, 474 Pa. 480, 378 A.2d 1215 (1977) (opinion announcing the judgment of the Court); Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) (opinion announcing the judgment of the Court). As the lead opinion in Polimeni stated:

"We thus hold . . . 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 manslaughter at least where evidence is presented at his trial on which a verdict of that less serious offense could rationally be based." 474 Pa. at 442, 378 A.2d at 1196 (footnote omitted).

See also Commonwealth v. Dussinger, 478 Pa. 182, 194, 386 A.2d 500, 506 (plurality opinion); Commonwealth v. Gartner, 475 Pa. 512, 521, 381 A.2d 114 (1977) (plurality opinion); Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (plurality opinion). ⁴ A review of the evidence is thus necessary.

The Commonwealth's evidence showed that Thomas and Joseph Solomon became involved in a fight in a tavern and were ordered to leave by the bartender. Thomas left the bar, followed by Joseph Solomon, his brother Arkinzie Solomon, and others. Kenny Jones, an eyewitness, testified that appellant swung at Joseph Solomon but was unable to land a blow, and that Joseph Solomon then hit Thomas and knocked him to the ground. Appellant then got up, ran across the street to an empty lot, and fired four or five times from about twenty feet away as Joseph Solomon began to advance toward him. Joseph Solomon's testimony was somewhat different. He stated that when he and his brother left the bar, appellant, who was standing on the sidewalk some six feet away, turned around, threw open his coat and started shooting. Joseph Solomon further testified that he was hit twice, once in the chest and once in the belt buckle, and that he thereupon lunged at appellant and tried to get his gun because "I was too close to run away." After a short scuffle in which he could not get the gun, Joseph Solomon turned away when someone shouted to him that his brother had been hit; Solomon did not see where Thomas then went. Joseph Solomon said he heard but two shots, and that neither he nor his brother had any knives. The police arrived shortly after the incident; they found no weapons at the scene and no powder burns were found on the clothing of the victims. No Commonwealth witness saw Leslie Watson when he was shot, but the bartender, who was inside the tavern during the episode, stated that immediately after he heard about four shots being fired, Watson entered the bar and fell to the floor, exclaiming that he had been shot.

That this evidence was sufficient to warrant a verdict of guilty of murder or voluntary manslaughter is clear beyond question. In assessing whether an involuntary manslaughter instruction should have been given, however, we must view the evidence in the light most favorable to the appellant. Commonwealth v. Terrell, supra --- Pa. at ---, 393 A.2d at 1119-1120; Commonwealth v. Polimeni, supra 474 Pa. at 443, 378 A.2d at 1196; Commonwealth v. Moore, 463 Pa. 317, 321-22, 344 A.2d 850, 852 (1975).

So viewed, the following is a summary of Thomas's testimony: Thomas left the bar and had reached the edge of the sidewalk when Joseph Solomon hit him from behind, knocking him down. As Joseph Solomon continued to hit him on the ground, appellant saw Arkinzie Solomon, about two feet away, advancing on him with a knife. Thomas broke away from Joseph Solomon, got to his feet and tried to get away, keeping his eye on Arkinzie Solomon to the rear, but in so doing ran into a parked automobile. Dazed, he turned around, and saw that Arkinzie Solomon was still advancing on him. "Because the man was coming at me with a knife, and there was no doubt in my mind that he will use it," Thomas drew his pistol and shot him from some five to six feet away. Arkinzie Solomon spun around and went across the street.

Immediately thereafter, Thomas's version continued, Joseph Solomon lunged at appellant with a knife and struck him across the chest with it as Thomas moved away from the car. Thomas then backed up another five or six feet and shot Joe Solomon, who was hit but kept coming toward him. When Solomon raised his knife, Thomas hit him with his gun in an uppercut motion to the head because "I didn't want to fire on the man again." Joe Solomon stumbled back, and Thomas left the scene. Thomas could remember firing only two shots, one at each of the brothers Solomon; he never saw Leslie Watson, although he did see someone else in the vicinity. Both of the Solomons, according to Thomas, had reputations for violence; in addition, Thomas had seen Joseph Solomon attack others on two prior occasions, and had seen Arkinzie Solomon attack another with a knife.

Appellant contends that this evidence was enough to compel an involuntary manslaughter instruction. I do not agree. Section 2504 of the Crimes Code, 18 Pa. C.S. § 2504 (1973), defines involuntary manslaughter as follows:

"A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person."

Cases in this Court decided before the Crimes Code was enacted defined involuntary manslaughter as " 'the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.' " Commonwealth v. Mayberry, 290 Pa. 195, 198, 138 A. 686, 687 (1927). This definition, which has been followed by us consistently in pre-Crimes Code cases, E. g., Commonwealth v. Jones, 452 Pa. 569, 579, 308 A.2d 598 (1973); Commonwealth v. Garrison 443 Pa. 220, 279 A.2d 750 (1971), was not changed in any substantial way by the Code. Under the Code, as in prior cases, the unlawful act causing death, like the lawful act, must be committed either recklessly ⁵ or negligently, ⁶ and the negligence must be of a higher degree than would suffice to establish liability in a civil case. See Commonwealth v. Busler, 445 Pa. 359, 361, 284 A.2d 783, 784 (1971); Commonwealth v. Aurick, 342 Pa. 282, 285-90, 19 A.2d 920, 922-24 (1941).

Appellant's testimony was directed to showing self-defense; he claimed that he shot the Solomons from five to six feet away, because they were advancing on him with knives, and that he did not shoot or ever see Leslie Watson. This evidence, if believed, would constitute a complete defense to the homicide charges. Alternatively, the evidence could persuade the jury that appellant killed Arkinzie Solomon and Leslie Watson while...