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491 Pa. 351

421 A.2d 172

Commonwealth v. Walker

Supreme Court of Pennsylvania

Decided September 22, 1980

Supreme Court of Pennsylvania · decided 1980-09-22

Relies on Commonwealth v. White · Commonwealth v. Thomas · Commonwealth v. Hinson

Good law ✅— No negative treatment on recordhow we know

Decided 1980-09-22

How this case has been cited

Cited by 10 later decisions — most recently June 2014

10 state decisions

401980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1OPINION

LARSEN, Justice.1

¶2On December 9, 1975, Harold Berry and Jerome Thomas were stabbed and beaten on the street in North Philadelphia by members of a nearby street gang. Berry died as a result of his wounds, and appellant Otis Walker was arrested for his participation in the incidents. After trial by jury, appellant was convicted of murder of the third degree, aggravated assault, criminal conspiracy, and possessing instruments of a crime. Post-verdict motions were denied, and appellant was sentenced to consecutive prison terms of ten to twenty years on the murder conviction and one to two years on the aggravated assault conviction. Sentence on the other two convictions was suspended.

¶3Appellant appealed these judgments of sentence to this court, and the appeal was transferred to a Special Transfer Panel of the Superior Court. That Panel denied appellant’s prayer for relief on all grounds asserted, except appellant’s allegation that the trial court erred in refusing his request for a jury instruction on the offense of involuntary manslaughter. The Panel noted the conflicting authority on this *353issue, see Commonwealth v. Hinson, 485 Pa. 626, 403 A.2d 564 (1979) and Commonwealth v. Thomas, 482 Pa. 312, 393 A.2d 1122 (1979), and transferred the case to this Court for resolution of that question.

¶4Recently, in Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980), Commonwealth v. Williams, 488 Pa. 625, 413 A.2d 658 (1980), it was held that “in a murder prosecution, an involuntary manslaughter charge shall be given only when requested, and where the offense has been made an issue in the case and the trial evidence reasonably would support such a verdict.” 490 Pa. at 186, 415 A.2d at 402. In the instant case, the offense of involuntary manslaughter was not at issue and the evidence would not reasonably have supported a verdict of guilty of that offense. The Commonwealth’s evidence unquestionably established an intentional killing, and appellant’s defense was that he went to the scene of the crimes anticipating only a “fair” fistfight, and fled as soon as his fellow gang members drew their knives. Thus, if appellant’s version of the incidents was accepted by the jury, he should have been acquitted of murder, not found guilty of involuntary manslaughter, and the trial court properly refused his request for a jury instruction on that offense.

¶5Consequently, the judgments of sentence are affirmed.

ROBERTS, J., filed a dissenting opinion in which O’BRIEN, J., joined.

¶6. This case was assigned to this writer after oral argument on May 23, 1980, but could not be proceeded with at that time because appellant’s counsel was given until June 23,1980 to file a supplemental brief. On June 20, 1980, appellant’s counsel requested and received a ten day extension of time within which to file his supplemental brief. This extension expired on July 4, 1980, at which, time the supplemental brief had not yet been filed. On July 16, 1980, appellant’s counsel filed a motion for permission to file the supplemental brief nunc pro tunc. That motion was denied on July 21, 1980, and the record and notes of testimony were forwarded to this writer.

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