No. 233 January Term, 1977, Appeal from the PCHA Order of the Court of Common Pleas of Lehigh County--Criminal, No. 1280-1971.
Richard Brent Somach, Allentown, for appellant.
William H. Platt, Dist. Atty., Raymond G. Kessler, James B. Martin, Asst. Dist. Attys., Allentown, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Nix, J., filed a concurring opinion in which Pomeroy, J., joined. Roberts and Manderino, JJ., concurred in the result.
In 1971, appellant was convicted of murder in the second degree in connection with the stabbing death of his girlfriend. Motions for new trial and in arrest of judgment were denied. He was sentenced to ten to twenty years' imprisonment. On appeal, judgment of sentence was affirmed by this Court.*fn1 Subsequently, appellant filed a petition under the Post Conviction Hearing Act requesting a new trial and/or release from custody and discharge. The lower court dismissed the petition and this appeal resulted.
Appellant presents three issues for review: whether the trial court erred in its instructions to the jury regarding the use of intoxication evidence to negate elements of the crime; whether the court abused its discretion by admitting into evidence certain photographs of the victim and of the scene of the crime; and whether appellant was denied effective assistance of counsel.
Appellant's first argument is that since he was on drugs at the time of the killing, the trial court erred in not charging the jury that a finding of intoxication could negate elements of the crime of murder and, therefore, reduce the jury's consideration to a charge of voluntary manslaughter. This argument relies on Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975), held to apply retroactively by Commonwealth v. Grello, 464 Pa. 250, 346 A.2d 543 (1975).*fn2 These cases expanded the use of evidence of voluntary intoxication to negate specific intent in crimes other than first degree murder, and required the judge to give appropriate jury instructions. This expansion was reversed by the General Assembly one year later.*fn3 Even if we assume, arguendo, that Graves applies retroactively to this case because of Grello,*fn4 it would not require a different result. Appellant's argument that the jury should be instructed on the possibility of reducing the crime to voluntary manslaughter, would require the negation of malice, the element distinguishing murder from manslaughter.*fn5 Graves addresses only specific intent. While evidence of alcohol or drug intoxication in a murder case may be used to negate intent
and thereby reduce the crime to a lesser degree of murder, in no event can it change the character of the crime from murder to manslaughter.*fn6 Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977). Appellant's argument thus fails.
Appellant next argues that it was error for the court to admit into evidence photographs of the victim and of the scene of the crime. Having failed to raise this question on direct appeal, appellant has waived the issue. Act of ...