No. 651 January Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, Imposed on Indictment No. 1198, August Session, 1976.
Allen N. Abrams, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Sheldon M. Finkelstein, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. O'Brien, J., did not participate in the consideration or decision of this case. Larsen, J., agrees with the opinion and joins therein except that he would find that the final issue was also waived. Roberts, J., filed a dissenting opinion. Manderino, J., filed a dissenting opinion.
Appellant, Carol Musi, was tried before a jury for the shooting death of her husband, a Philadelphia police officer, and was found guilty of murder of the third degree.*fn1 In this direct appeal from the judgment of sentence imposed upon the verdict, appellant cites three alleged instances of trial counsel's ineffectiveness and one assertion of trial error.*fn2 After consideration of these claims we are satisfied that they are without merit and affirm the judgment of sentence.
On July 28, 1976, appellant was serving at the bar where she was employed. At approximately 3:00 p. m., she began drinking and continued until 6:00 p. m. At 6:15 p. m., the deceased arrived and joined appellant and they drank together until 8:00 p. m. After leaving appellant's place of employment, the couple proceeded to another bar and stayed until 11:00 p. m. Upon leaving for home, an argument erupted between the two which required the intervention of the police. When they arrived home, the deceased removed some of his clothing and personal effects and entered a pickup truck which was parked nearby. Later, appellant emerged from the house and proceeded to the truck in which her husband was seated, and the argument resumed. Appellant then left the truck and re-entered the house, only to return within a short period of time carrying a rifle. She approached the truck, raised the rifle to her shoulder and shot her husband through the open window of the truck. There was also testimony that appellant had threatened the deceased on the night in question and on previous occasions.
Appellant testified that she believed the gun was not loaded, and that she was merely attempting to frighten her husband into returning to their house when she placed the rifle through the open truck window. She maintained that the rifle discharged only because her husband grabbed it while she was holding it.
It is by now axiomatic that the test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). In making this assessment we are not to employ a hindsight evaluation to determine whether other alternatives may have been more reasonable, Washington v. Maroney, supra, but whether there was a reasonable basis for the course of action actually selected. Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. O'Neal Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979); Commonwealth v. Treftz, 485 Pa. 297, 401 A.2d 1325 (1979); Commonwealth v. Williams, 485 Pa. 137, 401 A.2d 331 (1979); Commonwealth v. Tome, 484 Pa. 261, 398 A.2d 1369, 1371-72 (1979); Commonwealth v. Betrand, 484 Pa. 511, 399 A.2d 682 (1979); Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979); Commonwealth v. Ray, 483 Pa. 377, 396 A.2d 1218 (1979); Commonwealth v. Yocham, 483 Pa. 478, 397 A.2d 766 (1979); Commonwealth v. Chumley, 482 Pa. 625, 394 A.2d 497 (1978); Commonwealth v. Coleman, 482 Pa. 581, 394 A.2d 474 (1978); Commonwealth v. Sisco, 482 Pa. 459, 393 A.2d 1197 (1978). If a reasonable basis for counsel's trial strategy decision exists, that decision is imputed to the client. Commonwealth v. Sullivan, 450 Pa. 273, 299 A.2d 608, cert. denied, 412 U.S. 923, 93 S.Ct. 2745, 37 L.Ed.2d 150 (1973). Moreover, the fact that an ineffective assistance of counsel claim is entertained in a direct appeal, rather than in a collateral attack upon a judgment of sentence,*fn3 does not relieve the
party asserting the claim of providing a record which will support the contention.*fn4
Appellant argues that trial counsel was ineffective because of his failure to request that the jury be instructed as to homicide by misadventure. If there was evidence in the record that would support a jury finding of an accidental excusable killing, the defense would certainly be entitled to such a charge, Commonwealth v. Beach, 438 Pa. 37, 264 A.2d 712 (1970), and the failure to make such a request would cast serious question upon the quality of representation given by counsel. The difficulty with appellant's argument in this case is that accepting the version of the facts most favorable to her position they would not constitute a homicide of misadventure.
In Commonwealth v. Flax, 331 Pa. 145, 156-157, 200 A. 632, 637-638 (1938), we defined an accidental killing which would relieve the actor of the criminal responsibility for the death as being:
or without evil design or intention on the part of the slayer. All these elements must concur and the absence of any one of them will involve in guilt. Even though the homicide is unintentional, it is not excusable where it is the result or incident of an unlawful act, such as pointing or presenting a gun, pistol or other firearm at another person in such a manner as to constitute an offense under the laws of the state, or unlawfully striking another with an intent to hurt, although not with an intent to kill, or driving an automobile at an unlawful rate of speed". (citations omitted).
The defense's version at trial was that appellant raised the rifle to her shoulder and pointed it at the decedent in order to "scare the hell out of him". Claiming that she thought the rifle was unloaded, she aimed it at the decedent and said, "Now get the f___ in the house before you wreck our lives" and that the decedent struck the weapon causing it to discharge. Thus appellant concedes that the killing occurred while she was committing the act of pointing the rifle at the victim. The law of this jurisdiction is clear that it is unlawful to point a firearm at another, whether loaded or unloaded. Commonwealth v. Jackson, 464 Pa. 292, 346 A.2d 746 (1975). Commonwealth v. Chruscial, 447 Pa. 17, 288 A.2d 521 (1972) (pointing a firearm at another human being, even to scare, is not a lawful act in Pennsylvania).*fn5 Appellant stresses the fact that she was under the impression that the weapon was unloaded. While this fact, if believed, would support the premise that the killing was unintentional, that alone does not satisfy a finding that it was an excusable homicide. As noted in Commonwealth v. Flax, supra, "even though the homicide is unintentional, it is not excusable where it is the result or incident of an unlawful act . . ." Id. 331 Pa. at 157, 200 A.2d at 638.
Therefore, since the testimony did not warrant a charge as to homicide by misadventure, defense counsel's failure to request such a charge is obviously not a basis for finding ineffective assistance of counsel. Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978); Commonwealth v. Gray, 473 Pa. 424, 374 A.2d 1285 (1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Where a claim is not meritorious it is not ineffective assistance not to pursue it.
Appellant also challenges trial counsel's failure to seek a charge to the jury on involuntary manslaughter. A review of the testimony offered in the case would suggest there did exist rational basis for a verdict of involuntary manslaughter. Thus either under the theory of Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) or Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977), a trial judge would have been required to give the requested charge in this case, if he had been requested to do so. We therefore must look to see if there was any trial strategy, designed to effectuate the best interest of the client, that might move a trial counsel in the instant situation not to make such a request.*fn6
We have already noted, accepting the version of the facts most favorable to the defense, the appellant was at least guilty of reckless or grossly negligent conduct which was the legal cause of the death. In the charge given by the court, the jury's alternatives were confined to either finding a malicious killing (i. e., murder), an intentional killing resulting from provocation and passion or an acquittal. Thus if the jury had accepted the version of the defense, it could properly have returned a verdict of not ...