U.S. ex rel. Matthews v. Johnson, 73-1424

Decision Date15 January 1974
Docket NumberNo. 73-1424,73-1424
Citation503 F.2d 339
PartiesUNITED STATES of America ex rel. William MATTHEWS v. Robert L. JOHNSON, Superintendent, District Attorney of Philadelphia. Appealof COMMONWEALTH OF PENNSYLVANIA.
CourtU.S. Court of Appeals — Third Circuit

Judith Dean, Asst. Dist. Atty., Philadelphia, Pa. Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, Pa., for appellant.

Abraham J. Brem Levy, Philadelphia, Pa., for appellee.

Before SEITZ, Chief Judge, and KALODNER and ALDISERT, Circuit Judges.



ALDISERT, Circuit Judge.

This court is required to resolve a knotty Fourteenth Amendment problem in Pennsylvania murder trials which has evenly divided the justices on that state's highest court. 1 We are to decide whether, in a prosecution on a murder indictment, the Fourteenth Amendment requires the trial court, upon request, to give the jury the option of returning a verdict of voluntary manslaughter. 2 Adopting a Magistrate's Report and Recommendation, the district court reasoned that because Pennsylvania case law permits a jury verdict of voluntary manslaughter in the absence of evidence supporting the elements of that offense, 3 and also permits the trial court to exercise its discretion in deciding whether to give instructions on voluntary manslaughter, 4 a failure to submit the issue to the jury violated the defendant's constitutional rights of Due Process and Equal Protection. Accordingly, it granted a writ of habeas corpus. The Commonwealth appealed. Without reaching the Equal Protection issue, we affirm.

The relevant facts were summarized briefly in Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510, 511 (1971):

From the evidence, the jury was warranted in finding that Matthews, on February 23, 1968, acting in concert with his nephew, James Williams, and a friend, James Jackson, robbed Randolph Butts in Philadelphia and during the perpetration of the robbery Butts was stabbed four times by one of the felons, causing injury which resulted in Butts' death.


We begin our analysis with the Pennsylvania substantive law of voluntary manslaughter. For federal purposes we accept Justice Pomeroy's statement of the appropriate state law:

While it is considered felonious, voluntary manslaughter is the least culpable form of homicide included with a murder indictment. Thus, when considering the degree of culpability of an individual being tried under such an indictment, a jury may return a voluntary manslaughter verdict if it finds that the killing, althouth intentional, was committed without malice; that is, the accused may be shown to have been acting under the influence of sudden passion which was caused by legally adequate provocation that placed him beyond the control of reason. 5 See e.g., Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968); Commonwealth v. Paese, 220 Pa. 371, 69 A. 891 (1908). These elements need not always be present, however, to support a voluntary manslaughter verdict. Pennsylvania courts have long accepted the common law rule that the jury has the power to find a defendant guilty of voluntary manslaughter even in the absence of passion or provocation, where the evidence is sufficient to support a first or second degree murder verdict. Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970); Commonwealth v. Kellyon, 278 Pa. 59, 122 A. 166 (1923); Commonwealth v. Gable, 7 Serg. & R. 423 (1821). Although superficially such a rule may seem incongruous, it does have a rational basis. In essence, the rationale of the rule is founded on two considerations: (1) the legal concept that voluntary manslaughter is by definition a lesser offense than murder but one included within a murder indictment, (2) a realistic appreciation of the fact that factors such as sympathy or extenuating circumstances may lead a jury to find a defendant guilty of the lesser included offense of voluntary manslaughter even though the evidence is enough to establish guilt of murder in the second or even the first degree. Commonwealth v. Hoffman, supra.

Imposed upon this conceptual framework is a second rule . . .. That rule gives a trial judge complete discretion in deciding whether or not to submit voluntary manslaughter to the jury as a possible verdict in a case where there is no evidence of passion or provocation. 6 See, e.g., Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362 (1955); Commonwealth v. Yeager, 329 Pa. 81 196 A. 827 (1938). The reason for this rule is said to be that a charge on a point or issue which is unsupported by any evidence '. . . is likely to confuse the jury and obstruct Justice.' Commonwealth v. Pavillard, 421 Pa. 571, 221 A.2d 807 (1966).

Commonwealth v. Matthews, supra, 285 A.2d at 517.


The genesis of the federal constitutional problem is the anomaly that although the jury has unfettered power to return a voluntary manslaughter verdict as a lesser included offense of a murder indictment, it could not do so if the trial judge refused to charge on this point. Thus, whether the jury was given this opportunity was solely dependent upon the unrestricted discretion of the trial judge. 7 Justice Pomeroy, speaking for himself and Justice Roberts, concluded:

In my view, the due process and equal protection clauses of the Fourteenth Amendment require the abandonment of the procedure now again sanctioned by the court. Due process is violated where a state procedure denies to those subject to it the fundamental fairness required in a system of ordered liberty. Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 96 L.Ed. 183 (1952). The procedure here, grounded as it is upon the exercise of absolute discretion by the trial judge, without the benefit of any objective standards to guide him, is patently arbitrary and unfair.

Commonwealth v. Matthews, supra, 285 A.2d at 518. 8

The majority in Matthews did not meet the constitutional issue:

Appellant next asserts the trial court committed error in refusing a specific request to instruct the jury on voluntary manslaughter, and also in failing to submit to the jury such a finding as a possible verdict. Since there was no evidence which pointed in the slightest degree to the offense of manslaughter, the court's action did not constitute error. Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362 (1955); and Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 (1938).

285 A.2d at 514. 9


Thus, to offset Justice Pomeroy's constitutional contentions we must turn to the argument presented by the Commonwealth. It builds first on Sparf v. United States 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), which approved a jury charge given in a trial for murder on the high seas, which charge instructed the jury that it was not authorized to return a verdict of manslaughter because there was no evidence showing that crime. The Court stated: 'A verdict of guilty of an offense less than the one charged would have been in flagrant disregard of all the proof, and in violation by the jury of their obligation to render a true verdict. There was an entire absence of evidence upon which to rest a verdict of guilty of manslaughter or simple assault. A verdict of that kind would have been the exercise by the jury of the power to commute the punishment for an offense actually committed, and thus impose a punishment different from that prescribed by law.' Id. at 64, 15 S.Ct. at 278. Moreover, the Commonwealth directs us to Government of the Virgin Islands v. Carmona, 422 F.2d 95, 101 (3d Cir. 1970), in which we held 'there was no error in failing to charge as to voluntary manslaughter in the circumstances of the instant case. As there was no evidence of a quarrel or fit of passion, the jury could not have correctly found Carmona guilty of voluntary manslaughter,' citing Stevenson v. United States, 162 U.S. 313, 315, 16 S.Ct. 839, 40 L.Ed. 980 (1896).

Next, the Commonwealth argues that notwithstanding these and other cases, courts have found it necessary to uphold a defendant's conviction of a lesser included offense where a trial judge erroneously submitted the offense to the jury. The underlying rationale of these latter cases is that the Constitutional prohibition against double jeopardy 10 barred correction of the trial judge's error.

But neither Sparf nor Carmona meets the Due Process argument properly presented in these federal habeas corpus proceedings. The Supreme Court in Sparf and this court in Carmona were confronted with issues of statutory construction only; 11 neither discussed the Pennsylvania practice presently under review. 12

The Commonwealth then emphasizes that 'no court has held that because jury instructions not recognized by the law and overly favorable to one defendant were given at his trial, that thereafter every defendant is entitled to those same instructions.' 13 Underlying this argument is the assumption that, in Pennsylvania, the jury could not properly return a verdict of voluntary manslaughter on a murder indictment absent evidence of passion or provocation However the common law 14 and Pennsylvania substantive law recognize the jury's 'power,' 15 indeed 'prerogative,' 16 to return such a verdict if the court submits the issue to them. Moreover, in upholding such verdicts, the Pennsylvania Supreme Court has not relied on double jeopardy grounds but on the twofold consideration stated recently in Commonwealth v. Hoffman, supra, 266 A.2d at 732: '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 (included) offense than murder but one included in a murder indictment.'

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