Commonwealth v. Dussinger

POMEROY, Justice,

concurring.

I agree with the plurality that there should be a new trial on the homicide charge, but cannot join Mr. Justice *196O’BRIEN’s reasons for so concluding, as revealed by the citations in the last paragraph of his opinion before the mandate.1

The proposition that an accused in a prosecution for murder is entitled to a charge on involuntary manslaughter when there is no evidence that could justify that verdict has never been concretely presented to this Court and has never been accepted by a majority of this Court. See Commonwealth v. Polimeni, 474 Pa. 430, 442, 378 A.2d 1189, 1196 (opinion of POMEROY, J., joined by EAGEN, C. J., announcing the decision of the Court). See also Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199, 1210 (1977) (POMEROY, J., concurring); Commonwealth v. Ford, 474 Pa. 480, 485, 378 A.2d 1215, 1218 (opinion of POMEROY, J., joined by EAGEN, C. J., announcing the decision of the Court); Commonwealth v. Gartner, 475 Pa. 512, 532, 381 A.2d 114, 124 (1977) (POMEROY, J., concurring). In the case now before us there was sufficient evidence from which the jury could rationally conclude that the crime, if any, for which Dussinger could properly be convicted would be involuntary manslaughter.2 Since the trial judge refused a timely request for an instruction on involuntary manslaughter, I *197concur in the conclusion that a new trial on the homicide charge is required. The question whether a defendant is always entitled to such a charge is not present on this record and should be left for another day.

EAGEN, C. J., joins in this concurring opinion.

. In the appeal from the judgments of sentence for robbery and conspiracy at No. 387, I join in Mr. Justice O’BRIEN’s opinion.

. Appellant’s statement to the police, which was read into evidence, essentially stated that she did not know that she was part of a robbery when she went into Willie Billingsley’s house and that the gun she later held near Ernest Barnes discharged accidentally when she was startled by the sound of gunfire from upstairs. In light of her statement, the facts that appellant did not move the involuntary manslaughter indictment to trial at the outset of the case and that she presented testimony seeking to establish an alibi do not mean that a verdict of involuntary manslaughter was impermissible. See Commonwealth v. Ford, 474 Pa. 480, 485, 378 A.2d 1215, 1218 (1977) (opinion of POMEROY, J., joined by EAGEN, C. J., announcing the decision of the Court); Commonwealth v. Haywood, 464 Pa. 226, 230-32, 346 A.2d 298 (1975); Commonwealth v. Rose, 457 Pa. 380, 389-90, 321 A.2d 880 (1974). The jury is entitled to believe all, part, or none of the evidence presented by witnesses at trial. See, e. g., Commonwealth v. Scoggins, 466 Pa. 355, 359, 353 A.2d 392 (1976); Commonwealth v. Marlin, 452 Pa. 380, 384, 305 A.2d 14 (1973].