Memorandum — Cuyler v. Matthews

Supreme Court, U. S.

FILED

1975

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974 No. 573

ROBERT L. JOHNSON, Superintendent

and

DISTRICT ATTORNEY OF PHILADELPHIA

COMMONWEALTH OF PENNSYLVANIA,

Petitioner :

v.

WILLIAM MATTHEWS, Respondent

PETITIONER’S REPLY MEMORANDUM

F. Emmett Fitzpatrick,

District Attorney

ABRAHAM J. GAFNI,

Deputy District Attorney for Law

Sreven H. Gotps.atr,

Assistant District Attorney

Chief, Anpeals Division — 4 Ret

Bonnie Bricance LEADBATTER,

Assistant District Attorney

Desoran FE. Grass,

Assistant District Attorney

Room 666, New Sg :

Philadelphia, 19107

PRESS OF ALLEN, LANE ® SCOTT, PHILADELPHIA

IN THE

Supreme Court of the United States

OCTOBER THERM, 1974

ROBERT L. JOLUNSON, Superintendent

and

DINTRICT APTORNEY OF PHILADELPIELA

COMMONWEALTIL OF PENNSYLVANIA,

Petitioner

WILLIAM MATTILE WS, Respondent

Perinonxer’s Reriuy Memornaxnpum

In respondent’s brief opposing certiorari, extensive

treatment was afforded decisions of the Supreme Court

ef Pennsylvania. Beeause the Commonwealth originally

reserved the issue (see petition for writ of certiorari at

19). some confusion may have occurred concerning the

preeise nature of the Pennsylvania practice held unconsti-

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tutional by the court below. This is relevant to this

Court's decision as to the grant of certiorari only insofar

as a clear understanding. of the Pennsylvania practice

is necessary to determine whether there is a genuine

contliet between the Court of Appeals’ decision and the

other authorities cited in the Commonwealth's petition.

A brief review of the Pennsylvania caselaw' is therefore

submitted to show that the decisional contliets previously

asserted are not rendered illusory by some anomalous

quirk of state court practice.

In Pennsylvania, as in virtually every other jurisdic-

tion, voluntary manslaughter is considered a lesser’ in-

8 offense ina murder indietment.2 Conomonwealth

. Gable, TS & KR 423 (1821): Commonwealth ve Nellyon,

278 Pa. 59, 122 A. 166 (1923). Thus, juries have the power

vat render a manslaughter verdiet where the eharge is

murder.

Therefore, if there was any evidence, however slight.

whieh would support a manslaughter verdict, the court

was required to charge the jury on the lesser offerse.

llowever, where there was no evidence whatever tending

to reduce the crime to manslaughter, no such charge was

Tequired. Commonwealth v. Buceiers, WS Pal 535, 26 A.

228 (1893): Commonwealth v. Crossmire, 146 Pa. 304, 27

A. 40 (1893): Commonwealth v. Eckerd, 174 Pa. 137, 3

A. 3805 (1896): Commonwealth v. MacMurray, 198 Pa. 51,

47 A. 952 (1901): Commonwealth vo Sutton, 205 Pa. 605,

ad AL 781 (1908): Commonwealth vo Curcio, 216 Pa. 380,

6 AL 792 (1907); Commonwealth vo LeGrange, 227 Pa.

368, 76 A. 638 (1910): Commonwealth vo Morrison, 266 Pa.

223, 109 AL STS (1920): Commonwealth v. Pava, 268 Pa.

520, 112 A. 108 (1920): Commonwealth v. stale 278

Pa. 37, 122 A. 161 (1923): Commonwealth v. Robinson.

! Prior to May 2, 1974.

2 Involuntary manslaughter is not a lesser ineluded offense. Hilands v.

Commonwealth, 114 Pa, 372, 6 A.267 . 1886); Commonwealth v. Weinberg,

276 Pa. 255, 120 A.402 (1922).

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3

8305 Pa. 802, 157 A. G89 (1931); Commonwealth v. x eager,

829 Pa. SIL. 196 AL S27 (1988); Commonwealth v. Flax,

O31 Pa. 145, 200 A. 682 (1988): Commonwealth vo LaRue,

SSt Pa. 18. 2 Ad 8620 (1955): Commonwealth v.

Foster, 364 Pa. 288, 72 A.2d 279 (1950): Commonwealth

v. Pavillard, 42.1 Pa. 571, 220 A.2d SOT (1966): Common-

wealth ve Dews, 429 Pa. 555, 239 Ad 882. (1968); Cam-

monwealth ve Corb, 482 Pa. 551, 247 Ad 584 (1968):

Commonwealth v. Heckathoru, 429 Pa. 534, 241 Ad 97

(1968): Commonwealth v. Banks, 447 Pa. 356, 285 A.2d

TW (1971): Commonwealth ve Kenney, 449 Pa. 962, 297

A.2d 794 (1972): Commonwealth vo Jones, 450 Pa. 442,

2900 Ad 288 (1973): Commonwealth v. Cannon, 453 Va.

389, 309 A.2d 384 (1973).

The typieal case in which the charge was never re-

quired was the clear felony-murder situation, in’ whieh

malice was supplied by the intent to commit the under-

Iving felony, so evidence of passion and prevocation are

irrelevant. Brown v. Commonwealth, 76 Pa. 319, 339 (1874) :

Clark v. Commonwealth, 123 Pa. 555, 575, 16 A. 795, 799

(1SSS): Set aiceeiiisoats v. Meleskie, 278 Pa. 383, 123 A.

310 (1924): Commonwealth vo Davis, 440° Pa. 468, 297

A2d S17 (972 . cert. denied, 414 ULS. 836 (1973). In this

regard, the Supreme Court of Pennsylvania noted:

farbarous indeed would be a law permitting the

plea of provoeation and hot blood to a man who

when attempting rape flies into a frenzy and kills his

victim because she forcibly defends herself... But

no such rule exists in our eriminal jurisprudence.

Commonwealth ve Meleskie, supra at 3886, 128 A. at 311.

The final series of cases comprising the “*Penusyl-

Vania practice presently under review’ cite the long-

‘Opinion of the court below, Commonwealth's petition for writ of eerti

our, Appendix Boat ot.

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4

established common law doctrine that a jury verdict on

a lesser-included offense will not be disturbed because

the evidence clearly shows the defendant to be guilty of

the higher grade of crime. Nine such cases have been

found: Commonwealth v. Nellyon, 278 Va. 59, 122 A. 166

(1923); Commonwealth v. Arcuroso, 288 Pa. 84, 128 A.

668 (1925); Commonwealth v. Steele, 362 Pa. 427, 66 A.2d

825 (1949): Commonwealth v. Frazier, 411 Pa. 195, 191 A.2d

369 (1963): Commonwealth v. Frazier, 420 Pa. 209, 216

A.2d 337 (1966) (on appeal from retrial); Commonwealth

v. Cooney, 431 Pa. 153, 244 A.2d 651 (1968); Common-

wealth v. Dennis, 433 Pa. 525, 252 A.2d 671 (1969); Com-

monwealth vy. Harry, 437 Pa. 532, 264 A.2d 402 (1970);

Commonwealth v. Hill, 444 Pa. 323, 281 A.2d 859 (1971):

Commonwealth v. Butcher, 451 Pa. 359, 304 A.2Qd 150

(1973).4 The first and leading case in this series, Com-

monwealth v. Kellyon, supra, established the principle and

advanced most of the theoretical framework cited by later

eases to support the rule. This theoretical framework did

not rest on any novel analysis by the court. Instead it

relied solely on the well-settled common law doctrine of

lesser-included offenses. As precedent it cited no idiosyn-

cratic Pennsylvania jurisprudence, but a well-recognized

treatise on English and American common law.’

4 Both Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913 (1959), and

Commonwealth v. Hoffman, 439 Pa, 348, 266 A.2d 726 (1970), often cited as

examples of this rule, contain similar language. However, in each of these

eases the deceased died of wounds incurred in a fight in which he was the

original and continuing aggressor. Thus, the jury in either case might

justifiably have found provocation and hot blood,

513 Ruling Case Law 757 § 65 (1916). Two liter cases, Commonwealth v.

Prazier, (420) Pa.), supra, and) Commonwealth v. Butcher, supra, advert to

an additional reason for the rule: as the prohibition against double jeopardy

would prevent reversal and retrial for the higher offense, the only alterna-

tives are to affirm the judgment of the lower degree of crime or to discharge

the criminal altogether. As the latter course would vield an abhorrent result

by compounding the lenient with the ridiculous, appellate courts must aftirm

even apparent compromise or sympathy verdicts. Suttiee it to say that this

is net so much a legal preeept as a recognition of the reality existing in

every jurisdiction subject to the United States Constitution.

= eee”

CLARO BE SOI ie PO ALA DI EN OLE BREEAM CI Be BO ORT TN

5

No additional cases lurk in the cobwebs to distinguish

the Pennsylvania practice under consideration from the

practice in the other jurisdictions cited to this Court in

the Commonwealth's petition for writ of certiorari.’ A

comprehensive review of the cases belies the suggestion of

any bizarre state practice. Thus the clear conflict between

the holding of the court helow and other jurisdictions is

genuine, and capable of resolution only by this Court.

Respectfully submitted,

KF. Exmerr Firzparrnick

District Attorney

ABRAHAM J. GAFNI

Deputy District Attorney for Law

Steven HL. Gouppiarr

Assistant District Attorney

Chief, Appeals Division

Bonnie Brigance LEADBETTER

Assistant District Attorney

Denoran KE. Giass

Assistant District Attorney

Similarly the notion of “unrestricted discretion” asd expricious conduct

by trinl courts is based upon nothing more than an imaginative extrapolation

of the above-cited cnses.

RI SF ERIE TNT A FOE Oi i a as