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Commonwealth v. Boczkowski3/23/2004
nstituted a subjective opinion as to appellant's state of mind and improperly bolstered the credibility of the statement. The Commonwealth responds that a lay witness is permitted to express an opinion on a matter falling within the realm of common knowledge, experience or understanding. See Counterman, 719 A.2d at 301. The Commonwealth notes that Erwin testified that he and appellant "hit it off" in jail and that this circumstance ultimately led to appellant's incriminating statements. Thus, the witness's demeanor testimony was based upon personal observation. We agree with the Commonwealth that it was within the trial court's sound discretion to admit this testimony as falling within the realm of common knowledge, experience and understanding.
Appellant's next three assignments of error relate to the trial court's charge to the jury. Appellant first claims that he was entitled to a charge on voluntary manslaughter because the evidence would have supported a jury finding that the killing occurred in the heat of passion. Appellant contends that the scratches on his neck and the nick on his thumb are indicative of a physical altercation, possibly initiated by Maryann, that resulted in her death. The Commonwealth counters that the evidence in this case did not support a voluntary manslaughter charge.
"A defendant is entitled to a voluntary manslaughter charge only when the evidence adduced at trial would support such a charge," Commonwealth v. Robinson, 721 A.2d 344, 353 (Pa. 1999) (citing Commonwealth v. Browdie, 671 A.2d 668, 674 (Pa. 1996); Commonwealth v. Williams, 640 A.2d 1251 (Pa. 1994)), and where the offense has been made an issue in the case. Browdie. A person commits voluntary manslaughter when he kills another without lawful justification if, at the time of the killing, he is acting under a sudden and intense provocation by the person killed. 18 Pa.C.S. § 2503(a). Here, appellant's sole theory of defense at trial was that Maryann's death was an accident.
Moreover, although appellant gave various accounts of his wife's death, there was no evidence presented which suggested that appellant and his wife had a physical altercation which led to her death. Appellant told Detective Cvetic that he and Maryann were "kissing" and "getting romantic" in the hot tub shortly before Maryann's death. N.T. 4/20/99 at 583. Another police officer, Officer W. Barrett, overheard appellant tell his mother that he had quarreled with Maryann earlier that day but that they had resolved their issues; appellant then went inside the house and when he returned, found Maryann under the water. N.T. 4/16/99 at 224. In addition, appellant told a paramedic at the scene that he and Maryann were in the hot tub celebrating an upcoming event, he left to take a shower, and when he returned approximately fifteen minutes later, Maryann was unconscious and face-up in the hot tub. Id. at 339. On this record, the trial court did not err in refusing to charge the jury on voluntary manslaughter.
Appellant next claims that he was entitled to a jury instruction on involuntary manslaughter. The test here is the same as the test for the availability of a voluntary manslaughter charge, i.e., it is required only if the offense has been made an issue and the trial evidence would support it. Commonwealth v. White, 415 A.2d 399, 402 (Pa. 1980). "A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person." 18 Pa.C.S. § 2504(a). Appellant argues that the jury could have found that he acted recklessly or grossly negligently wh
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