Commonwealth v. Fell

• Decision Date: 19 September 1973
• Citation: 453 Pa. 531,309 A.2d 417
• Parties: COMMONWEALTH of Pennsylvania v. Robert William FELL, Appellant.
• Court: Pennsylvania Supreme Court

309 A.2d 417

453 Pa. 531

COMMONWEALTH of Pennsylvania v. Robert William FELL, Appellant.

Supreme Court of Pennsylvania.

September 19, 1973.

John R. Merrick, Public Defender, West Chester, for appellant.

William H. Lamb, Dist. Atty., M. Joseph Melody, James R. Freeman Asst. Dist. Attys., F. N. Hand, West Chester, for appellee.

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

OPINION OF THE COURT

EAGEN Justice.

The appellant, Robert W. Fell, was convicted by a jury of murder in the first degree, and the penalty was fixed at life imprisonment. After post trial motions were denied and sentence was imposed as the jury directed, this appeal was filed.

Although appellant does not challenge the sufficiency of the evidence, we have reviewed the record and find ample evidence to support a conviction of murder in the first degree. The record establishes the following facts.

On Sunday July 6, 1969, about 9:30 p.m., Fell went to the apartment of his estranged wife in the Borough of West Chester, Chester County, where she was living with one Adolfo Rivera. His visit was ostensibly to deliver presents to his daughter. Before the visit, Fell had placed a .38 caliber revolver in a gym bag which he carried with him. ^[1] Upon being admitted to the apartment, Fell proceeded to a bedroom where his wife and Rivera were in bed together. He withdrew the revolver from the bag and said to his wife: 'If you don't live with me, you don't live with anybody else.' He then fired ten to fourteen shots from the revolver at his wife and Rivera. The former was killed, but Rivera, although seriously wounded, survived. When the police arrived on the scene, Fell said, 'I did it. I did it.'

In defense, Fell testified to marital problems he had with his wife. He explained possession of the revolver on the night in question by saying he had intentions of delivering it to a friend for hunting purposes. He stated upon entering the apartment, his wife engaged him in a heated argument over the support of their child, and after this he said he remembered nothing until the police arrived.

Initially, fell complains the charge of the trial court failed to adequately distinguish voluntary manslaughter from first degree murder and 'effectively foreclosed a manslaughter verdict.'

An examination of the record discloses that in the first instance, the judge defined voluntary manslaughter as follows:

'A 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 wrecklessness 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 exists concerning the difference between that crime and the crime of first degree murder. If you bear in mind that manslaughter is never attended by legal malice--again getting back to legal malice--if you bear in mind manslaughter is never attended by legal malice, that is, by a direct intent, a specific intent to kill, or by depravity of heart or cruelty or wantonness, cruelty or wantonness or recklessness of consequences, then this will help you in ascertaining the difference.

'Voluntary manslaughter is willful but it is necessary that the surrounding circumstances take away every evidence of cruel depravity and wanton cruelty, therefore, to reduce an intentional let's say blow or wound which results in death to voluntary manlaughter, 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.'

At the conclusion of the charge, an unreported sidebar conference was held, and thereafter the judge gave the following additional charge on manslaughter:

'Now, then voluntary manslaughter, which is the third matter which I want to go into again here, is a homicide, a killing, which is intentional. It's intentionally committed under the influence of passion. It consists of an intentional and unlawful killing of a human being without malice, as I have defined that to you, but committed under the immediate influence of sudden passion. Passion as here used means any of the emotions of the mind, such as anger, rage, sudden resentment or terror, of such a degree of intensity as is sufficient to obscure temporarily the reasoning of the person affected and thus render the mind incapable of cool reflection. That is to say, there must be a sufficient cause of provocation and a state of rage or passion without time to cool placing the actor beyond the control of his reason and suddenly impelling him to do the deed.

'The sudden passion which is an element of voluntary manslaughter must be due to a legally adequate provocation. I mentioned some of those earlier to you. I read some of them. And if they are just trivialities, trivial words or conduct it's not sufficient to legally provoke a man.

'Voluntary manslaughter is manslaughter committed without malice, although with the intent to kill or to inflict serious bodily harm, but upon a sudden heat of passion or quarrel where there is sufficient cause or provocation without time to cool and which places the slayer beyond the power of reason and impells him to do the deed.'

The trial judge then asked counsel if the additional charge were satisfactory, to which both replied it was, ^[2] whereupon the jury retired. After the jury retired, defense counsel stated the following: 'I would like to take an exception to the charge that a manslaughter must be accompanied by a direct intent to kill.' This exception was without factual foundation since the record clearly demonstrates the judge never employed the words 'manslaughter must be accompanied by a direct intent to kill.' ^[3]

Fell does not question the correctness of the court's definition of voluntary manslaughter at the end of the charge. He maintains the initial instruction that manslaughter is a killing 'never attended by legal malice, that is, by a direct intent, a specific intent to kill' was erroneous; and the error was not adequately counteracted or corrected, because the judge 'never indicated this definition (the one at the end of the charge) was inconsistent with the erroneous statements in the general charge.'

Accepting that the definition of voluntary manslaughter, as given in the first instance, to the effect it is a killing 'never attended . . . by a direct intent' was erroneous, ^[4] we are not persuaded this inadvertence was not corrected and clarified for the jury by the subsequent instructions.

It is fundamental that a jury charge must be evaluated by a reading and...