Nos. 128 & 129 Special Transfr Docket, Appeal from the Order of the Court of Common Pleas of Philadelphia, Criminal Trial Division, November Term, 1976, No. 2083-2084.
Anthony Meglio, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, Manderino and Cirillo, JJ.*fn* This decision was reached prior to the death of Manderino, J.
[ 273 Pa. Super. Page 69]
This is an appeal from the order of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, by the defendant, John Ross, Jr., after his conviction by a judge sitting without a jury of voluntary manslaughter and a weapons charge. He was sentenced to a term of not less than two (2) nor more than (10) years imprisonment. The defendant raises several issues in this appeal.
On November 20, 1976, the defendant stabbed to death one Richard Moregrass in the residence of the defendant's estranged wife. Moregrass was his wife's paramour. Defendant had arrived at the house late at night ostensibly to repair a broken screen door. His wife was asleep at the time and apparently was unaware of defendant's presence at the scene. Later the victim entered the home in an intoxicated condition.*fn1 His entry was preceded by a bang at the front door. Defendant then went into the living room and saw the victim standing there. As he entered the living room, defendant carried a knife he had picked up in the kitchen. Upon seeing the victim, the defendant began stabbing him with the knife. A struggle ensued during which the defendant stabbed the victim several times. The struggle continued outside the house during which the defendant stabbed the victim several more times. The victim then dropped to the ground where his body was found by the police. The cause of the victim's death was established as six stab wounds to his abdomen, chest and back.
The evidence also established that the only blood found either inside the house or outside on the sidewalk was that of the victim. Defendant suffered no bruises nor tearing of his clothes during the incident. The victim carried no weapons,
[ 273 Pa. Super. Page 70]
nor did he say anything to the defendant upon entering the house. He carried only a frozen chicken which was found inside the house near the place where he was initially attacked by the defendant. Defendant had not fixed the door securely. Defendant admitted in a statement given to the police after he had been provided with his Miranda warnings that he knew the victim previously, that he knew the victim was seeing his wife, and had been warned by the victim not to "come around no more".
Defendant's first assignment of error is that the evidence was not sufficient to convict him of voluntary manslaughter and that he was entitled to a defense of self-defense as a matter of law. With this contention we disagree. The use of deadly force is justified only where the actor believes that such force is necessary to protect himself against death or serious injury. 18 Pa.C.S.A. 505. If the slayer did not reasonably believe that he was in imminent danger of death or great bodily harm and that there was a necessity to use such force in order to save himself therefrom then his use of deadly force was not justified. Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977). In the instant case, the evidence indicated that the victim had not threatened the defendant nor taken any menacing actions towards the defendant at all on the night of the killing. The fact that the defendant continued to stab the victim even after the participants had moved out into the street was also inconsistent with defendant's self-defense assertion. The defendant was not bruised during the incident, suffered no lacerations, nor were his clothes even torn. Under the above set of facts we hold that the finder of fact was justified in rejecting defendant's self-defense claim.
Defendant's second contention is that his attorney was ineffective for failing to move to suppress defendant's statements made to the police regarding the incident. However, an attorney is not ineffective for failing to raise issues which are clearly non-meritorious. Commonwealth v. Myers, 481 Pa. 217, 392 A.2d 685 ...