Commonwealth v. Kenney

¶1Dissenting Opinion by

¶2“Our scheme of ordered liberty is based like the common law, on enlightened and uniformly applied legal principle, not on ad hoc notions of what is right or wrong in a particular case.” J. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, in the Evolution of a Judicial Philosophy 289, 291-92 (D. Shapiro ed., 1969).

¶3These timely words, unfortunately, have here been ignored by the majority. Instead the majority today eschews a “uniformly applied legal principle” in favor of “ad hoc notions,” and I must dissent.

¶4This Court is in complete agreement that in any murder prosecution the jury may always return, and the court must accept, a verdict of voluntary manslaughter.1 Yet the majority advances the view that *571when there is no factual basis to support a finding of voluntary manslaughter, the trial court may in its discretion refuse to charge on voluntary manslaughter, even when so requested, thus effectively keeping the jury unaware of its power. In so holding the majority has completely ignored the “uniformly applied legal principle” that a jury may always, in any murder prosecution, return a verdict of voluntary manslaughter. Instead the majority has permitted the trial court’s decision on whether to charge on voluntary manslaughter to be nothing more than an “ad hoc notion.”

¶5The principle that a jury in a murder prosecution may return a verdict of voluntary manslaughter that must be accepted by the court has two distinct underpinnings. It has long been held that because voluntary manslaughter is a lesser included offense of the crime of murder, “under an indictment charging murder, defendant may be convicted of voluntary manslaughter . . . though it may clearly appear from the evidence that defendant was in fact guilty of a higher grade. . . .” Commonwealth v. Arcuroso, 283 Pa. 84, 87, 128 Atl. 668, 670 (1925). Similarly, several cases of this Court have intimated that the jury’s power to return a verdict of voluntary manslaughter is an exercise of the jury’s dispensing power. Commonwealth v. Hill, 444 Pa. 323, 327, 281 A. 2d 859, 861 (1971) ; Commonwealth v. Hoffman, 439 Pa. 348, 358, 266 A. 2d 726, 731 (1970); Commonwealth v. Moore, 398 Pa. 198, 208, 157 A. 2d 65, 71 (1959); Commonwealth v. Steele, 362 Pa. 427, 430, 66 A. 2d 825, 827 (1949).

¶6It would surely be illogical to hold as our cases do that “the jury may find the accused guilty of the less *572offense [voluntary manslaughter]”2 and yet deny the jury an instruction as to its power to return such a verdict. It would indeed be anomalous to recognize the jury’s dispensing power in a murder prosecution, and yet deliberately withhold from the jury knowledge of that power.3 This anomaly the majority today elevates to a legal principle of criminal justice.

¶7Nor should the majority shield itself from the injustices created by its holding today. Some trial courts in this Commonwealth always give a charge on voluntary manslaughter, whether requested or not, regardless of whether a factual basis for such a finding exists. Other trial courts never give a charge on voluntary manslaughter, even when so requested, unless a factual basis for such a charge exists. This unequal treatment of defendants otherwise similarly situated, as Mr. Justice Pomeroy has observed, has no “rational basis,”4 and is clearly violative of the equal protection clause.

¶8The effect of the majority’s present disposition is to leave our trial courts with absolutely no standards or guidance on the crucial question of whether to charge the jury on voluntary manslaughter when there is no evidence to support such a finding. Indeed all that emerges from the majority’s disposition here is that trial courts are to use an “ad hoc notion of what is right or wrong.”

¶91 dissent.