Nos. 378 & 416 January Term, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas of Delaware County, Pennsylvania, Criminal Division, dated March 8, 1976, Nos. 388-395 September Sessions, 1974.
Norman L. Goldberg, Media, for appellant.
Ralph B. D'Iorio, Asst. Dist. Atty., Chief, Appeals Div., Anna Iwachiw Vadino, Asst. Dist. Atty., Michael F. X. Cox, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., filed a dissenting opinion.
A jury convicted appellant, Richard Brightwell, of murder of the third degree, voluntary manslaughter, resisting arrest and possession of firearms without a license. The trial court struck the verdict of guilty of voluntary manslaughter. Appellant filed post-verdict motions but, before argument, the court permitted trial counsel to withdraw. New counsel filed additional motions. The court denied all motions and sentenced appellant on the murder conviction to imprisonment of ten to twenty years and fined him $500.00 and costs. The court suspended sentence on the other charges. Appellant contends that (1) insufficient evidence exists to support the verdict of guilty of murder of the third degree; (2) replacement of trial counsel on post-verdict motions denied him effective assistance of counsel and equal protection; (3) the prosecutor committed reversible error when he cross-examined appellant concerning his failure to call certain witnesses; (4) the court erroneously charged the jury that appellant had the burden of proving self-defense; and (5) the verdict of guilty of both murder of the third degree and voluntary manslaughter was contrary to law. We affirm.*fn1
Viewed in the light most favorable to the Commonwealth, Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976), the evidence shows that appellant and his girlfriend, Nannie Brown, quarrelled because appellant supposedly was seeing another woman. Appellant moved out of their residence and into a local YMCA. On June 24, 1974, appellant sought out Brown at a service station, where he discovered her in a phone booth. Appellant called for her to come out, but she refused. Appellant then began to approach her. Brown drew a pistol, pointed it at the ground and fired. Appellant retreated to his car and drove away. Ten minutes later, appellant returned with a gun. Brown ran into the station garage, pursued by appellant. It is unclear whether Brown fired another shot as appellant advanced towards her. Appellant entered the garage, grabbed Brown, threw her to the floor and announced, "Bitch, this is it." Appellant leveled his gun at her head and fired five shots, striking her four times. Appellant then ran outside and fled in his car. This evidence is sufficient to support the verdict of guilty of murder of the third degree. See Commonwealth v. Walley, 466 Pa. 363, 353 A.2d 396 (1976); Commonwealth v. Walker, 447 Pa. 146, 288 A.2d 741 (1972).
Appellant argues that he was denied effective assistance of counsel because his trial counsel, before arguing post-verdict motions, withdrew to assume a position in the district attorney's office. Appellant, however, has not indicated how he was denied effective representation. He does not point out any issue new counsel failed to raise or otherwise describe some course of conduct counsel should have pursued but did not. Indeed, new counsel filed supplemental post-verdict motions raising the issues upon which appellant now relies, whereas trial counsel filed only boilerplate motions. Appellant has therefore failed to meet his burden of demonstrating that counsel failed to perform some act necessary to effective representation. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
During cross-examination, the Commonwealth asked appellant whether there was any reason why he had not contacted a certain witness and had him testify. Appellant immediately objected and requested a mistrial. The court denied the motion but thoroughly cautioned the jury that it was to disregard the question and at all times keep in mind that the defense need not present any evidence in its favor because the burden of proof always rests upon the Commonwealth.*fn2 This instruction was sufficient to dispel any prejudice caused by the prosecutor's improper question. See Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978) (cautionary instruction cured prejudice of prosecutor's remark implying that defendant threatened witnesses); Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974) (immediate instruction cured prosecutor's comment implying ...