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COMMONWEALTH v. MCGROGAN (11/30/72)

decided: November 30, 1972.

COMMONWEALTH
v.
MCGROGAN, PETITIONER



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Oct. T., 1969, Nos. 93 and 94, in case of Commonwealth of Pennsylvania v. Robert E. McGrogan.

COUNSEL

John R. Cook, Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.

J. Kent Culley, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Manderino.

Author: Roberts

[ 449 Pa. Page 585]

Appellant Robert E. McGrogan was tried by a jury in Allegheny County and found guilty of second degree murder. Post-trial motions were denied and he was sentenced to serve a term of not less than ten nor more than twenty years. Appellant's sole contention in this direct appeal is that the trial court erred in failing to instruct the jury on voluntary manslaughter. We affirm.

Appellant places principal reliance on the maxim that "[w]here there is some evidence which would reduce the crime to voluntary manslaughter, defendant is entitled to have the jury instructed upon the subject."*fn1 Although conceding that he neither admitted the slaying nor introduced evidence tending to establish

[ 449 Pa. Page 586]

    self-defense*fn2 or passion and provocation,*fn3 appellant argues that the factual basis for voluntary manslaughter here was established inferentially by the Commonwealth's evidence.*fn4 We need not, however, respond to appellant's argument, because we find the record clearly evinces that as part of his trial strategy appellant decided to forego the possibility of the jury returning a verdict of voluntary manslaughter.

It is, of course, firmly embedded within our system of criminal justice that certain decisions during trial are within the exclusive province of counsel. For instance, in the seminal case of Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564 (1965), the United States Supreme Court acknowledged that the decision of whether to contemporaneously object to admission of evidence was one calling for the expertise and experience of

[ 449 Pa. Page 587]

    counsel, and that a failure to object at trial may constitute a "deliberate bypass" precluding the defendant from obtaining relief in the federal courts. Id. at 451-52, 85 S. Ct. at 569.*fn5

The ABA Standards for Criminal Justice urge that "[t]he lawyer should seek to maintain a cooperative relationship at all stages, while maintaining also the ultimate choice and responsibility for the strategic and tactical decisions in the case."*fn6 The progeny of Henry, as well as decisional law predating Henry, have delineated the type of ...


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