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decided: November 30, 1972.


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.


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 "strategic and tactical decisions" which must*fn7 be exercised by defense counsel alone.

[ 449 Pa. Page 588]

Courts have held that such tactical decisions as whether to make a summation,*fn8 whether to request instructions,*fn9 whether to make a motion for change of venue,*fn10 whether to challenge hearsay statements,*fn11 and many others*fn12 are decisions to be made by defense counsel.

[ 449 Pa. Page 589]

The decision of whether to request a charge on voluntary manslaughter is clearly a matter of trial strategy that calls for the "ultimate choice and responsibility" of defense counsel. If no charge on voluntary manslaughter is requested, the effect is to limit the jury's options to either returning first or second degree murder or outright acquittal. The nature of the decision is such that "only trained experts can comprehend [its] full significance."*fn13 If, as a matter of constitutional law, trial strategy may govern the decision of whether to object to illegally obtained evidence, Henry, supra, a fortiori the state created substantive right of a charge on voluntary manslaughter is similarly a matter for trial strategy.*fn14

[ 449 Pa. Page 590]

Turning our focus to the record, it clearly establishes that as a matter of trial strategy counsel sought to limit the jury's options to either finding first or second degree murder or outright acquittal. The evidence of the Commonwealth, although substantial, was somewhat conflicting as to appellant's actual conduct at the time of the slaying. Appellant's counsel could have reasonably decided that the jury might find the Commonwealth's evidence inconclusive and thus return a verdict of outright acquittal.

A colloquy between defense counsel and the court during the course of the trial further indicates the nature of counsel's trial strategy. The court expressed a desire to know whether appellant was seeking to establish a basis for self-defense and the following colloquy ensued: "The Court: Do I understand you intend to make a defense of self-defense in this case? Is that what you are trying to lead up too? Mr. Village: No, your Honor. The Court: Then self-defense isn't what you intend to do? Mr. Village: Not as far as I can determine at this time." At the conclusion of the trial appellant neither requested a charge

[ 449 Pa. Page 591]

    on voluntary manslaughter*fn15 nor did he interpose an objection when the court instructed the jury it could not return a verdict of voluntary manslaughter.*fn16

The record amply supports the conclusion that as part of his evaluation of the Commonwealth's evidence trial counsel decided to forego a defense of self-defense and charge on voluntary manslaughter. Trial counsel did not either during cross-examination or through defense witnesses attempt to establish self-defense or any basis for voluntary manslaughter. Instead his trial strategy was to seek outright acquittal on the ground that appellant did not commit or participate in the slaying. In the face of trial counsel's considered choice, made with a "reasonable basis", to limit the jury's options, the trial court did not err in its charge. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967); see note 14 supra. And, as the Supreme Court noted in Henry, when for some reason counsel's deliberate trial strategy "backfires," the failure of the strategy cannot form the basis for relief upon review. 379 U.S. at 451, 85 S. Ct. at 569; Commonwealth ex rel. Washington v. Maroney, supra at 604-05, 235 A.2d 352-53, see note 14 supra.

The judgment of sentence is affirmed.


Judgment of sentence affirmed.

Concurring Opinion by Mr. Justice Manderino:

I concur in the affirmance of the judgment of sentence even though the trial court committed error in charging the jury by failing to instruct on voluntary manslaughter for the reasons expressed in my concurring opinion in Commonwealth v. Amato, 449 Pa. 592, 297 A.2d 462 (1972).

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