Commonwealth v. Penn

• Decision Date: 12 October 1971
• Citation: 282 A.2d 233,444 Pa. 526
• Parties: COMMONWEALTH of Pennsylvania v. Ranzy PENN, Appellant.
• Court: Pennsylvania Supreme Court

282 A.2d 233

444 Pa. 526

COMMONWEALTH of Pennsylvania v. Ranzy PENN, Appellant.

Supreme Court of Pennsylvania.

October 12, 1971.

Frederick W. Andrews, Harrisburg, for appellant.

Marion E. MacIntyre, Asst. Dist. Atty., Harrisburg, for appellee.

Before BELL C.J., and JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.

OPINION OF THE COURT

BELL, Chief Justice.

Appellant shot and killed Jerome Brown on December 21, 1968.He was indicted for murder and for carrying a concealed deadly weapon.He was tried on the murder indictment and the jury found him guilty of voluntary manslaughter.

Jerome Brown died of a gunshot wound which appellant admits firing, but appellant claims that the shooting was done in self-defense or accidentally.Prior to the shooting appellant and Brown were involved in a fist fight in a tavern in Harrisburg.After the fight, appellant left the tavern and as Brown was leaving the tavern appellant shot him with a rifle.

Following conviction, appellant was informed of his right to appeal and signed a written waiver of this right.A sentence of from five to ten years' imprisonment was imposed.

On November 13, 1969, appellant filed a petition under the Post Conviction Hearing Act.^[1] In this petition, appellant alleges that the Constitution of Pennsylvania and the Constitution of the United States prevent his being found guilty of voluntary manslaughter when the indictment was solely for murder.An answer to the P.C.H.A. petition was filed by the Dauphin County district attorney's office.As part of the answer appellant was informed that all of his contentions or allegations had to be raised in a single P.C.H.A. petition and, therefore, if appellant had any other complaints, he should seek to amend the original petition so as to include them.

On December 31, 1969, an attorney was appointed to represent the appellant.On August 25, 1970, appellant's P.C.H.A. petition was denied by the lower Court without a hearing.The present appeal was taken from the denial of the P.C.H.A. petition.^[2]

Appellant's sole contention in this appeal is, we repeat, that the lower Court's denial of his P.C.H.A. petition was erroneous and in violation of his Constitutional rights.This contention flies in the face of the long-established law of this Commonwealth.As this Court recently said in Commonwealth v. Dennis,433 Pa. 525, pages 528--529, 252 A.2d 671, page 673: 'In Commonwealth v. Frazier,420 Pa. 209, page 211, 216 A.2d 337, supra, the Court said: 'Defendant was indicted in 1961 for the murder of his wife.At that time he was also indicted, on a separate bill of indictment, for voluntary and involuntary manslaughter.On July 9, 1962, defendant was brought to trial only on the bill charging murder.The Commonwealth's evidence, if believed, proved that defendant was guilty of first degree murder.Defendant's defense was that his wife committed suicide.There was no evidence, either by the Commonwealth or by the defendant, of passion or provocation.Nevertheless, the jury returned a verdict of voluntary manslaughter on, we repeat, the bill of indictment charging murder--a verdict permitted Even under such evidence ^[3] by many decisions of this Court: Commonwealth v. Frazier,411 Pa. 195, 191 A.2d 369;Commonwealth v. Nelson,396 Pa. 359, 152 A.2d 913;Commonwealth v. Steele,362 Pa. 427, 66 A.2d 825."

The requirement for sustaining a voluntary manslaughter conviction when the appellant has been indicted solely for murder was recently set forth by this Court in Commonwealth v. Hoffman,439 Pa. 348, pages 358, 359, 266 A.2d 726, pages 731, in which we stated: 'As the cases enunciating the doctrine make clear, all that is required before a conviction of voluntary manslaughter in the absence of passion and provocation will be allowed to stand is that the evidence be such that the jury Could ^[4] have found present every element of murder.* * * In short, the rationale of the doctrine under discussion is found in a combination of two factors: a realistic appreciation of the humanity of those who sit on our juries, and the legal concept that voluntary manslaughter is by definition a lesser offense than murder but one included within a murder indictment.'

At the trial the principal witnesses for the Commonwealth testified as follows: Michael DeFrank, a Harrisburg police officer, testified that when he...