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COMMONWEALTH v. SULLIVAN (01/19/73)

decided: January 19, 1973.

COMMONWEALTH
v.
SULLIVAN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Berks County, No. 422 of 1971, in case of Commonwealth of Pennsylvania v. John C. Sullivan.

COUNSEL

David M. Kozloff, for appellant.

Grant E. Wesner, Deputy District Attorney, with him Robert L. VanHoove, 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 O'Brien. Mr. Justice Eagen and Mr. Justice Pomeroy join in this concurring opinion.

Author: Roberts

[ 450 Pa. Page 274]

Appellant, John C. Sullivan, was tried by a jury in Berks County and convicted of murder in the second degree. After denial of motions for a new trial and in arrest of judgment appellant filed this appeal. Appellant alleges eight trial errors as a basis for relief. On this record we find four issues to be totally without merit and shall proceed to discuss the remaining four asserted errors.*fn1

[ 450 Pa. Page 275]

Appellant's principal contention is that the trial court erred in defining voluntary manslaughter to the jury. In its charge the court instructed that voluntary manslaughter consists of an unlawful killing "without a direct intent to kill."*fn2 In Commonwealth v. Jennings, 442 Pa. 18, 23, 274 A.2d 767, 769 (1971), this Court specifically held that this precise charge*fn3 was incorrect because voluntary manslaughter could be accompanied by a direct intent to kill. However, in Jennings, as here, defense counsel neither objected to nor requested correction of the erroneous charge before the jury retired to deliberate. In Jennings, we held that ". . . appellant's failure to take a specific exception to this portion

[ 450 Pa. Page 276]

    of the charge, as required by Pa. R. Crim. P. 1119(b), forecloses our consideration of this issue on this appeal." Commonwealth v. Jennings, supra at 24, 274 A.2d at 770.*fn4 Similarly appellant's failure, here, to object to the charge when given is fatal to his assertion of this claim on appeal.

Moreover, appellant cannot now successfully challenge the claimed error in the charge because the record discloses that as a matter of trial strategy appellant elected to seek an acquittal on the ground of self-defense and decided to forego consideration by the jury of a verdict of guilty of voluntary manslaughter. See Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972). It is well settled that whether to object to the trial court's charge, to request clarification of the charge, or to request additional points for charge is one of the tactical decisions "within the exclusive province of counsel." McGrogan, supra at 586, 297 A.2d at 457; see United States ex rel. Green v. Rundle, 452 F. 2d 232 (3d Cir. 1971); United States v. McKenzie, 409 F. 2d 983 (2d Cir. 1969). In United States ex rel. Green v. Rundle, supra at 237, the Third Circuit held that counsel's failure to object or to request a particular instruction was a "deliberate by-pass" necessarily imputed to the appellant. Here defense counsel's failure to object to an erroneous instruction on voluntary manslaughter presents the identical situation.

Appellant may be eligible for relief if it is determined that counsel's conduct of the trial lacked the quality of representation set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 ...


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