No. 243 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas of Northampton County, Criminal Division, No. 1787-1976
Mark S. Refowich, Easton, for appellant.
Michael Vedomsky, Assistant District Attorney, Easton, for Commonwealth, appellee.
Wieand, Nix and Wekselman, JJ.*fn* Wieand, J., files a dissenting opinion.
[ 270 Pa. Super. Page 473]
On April 14, 1977, after a jury trial appellant was found guilty of murder in the first degree and was sentenced to life imprisonment. A direct appeal to the Supreme Court of Pennsylvania was filed by trial counsel, who thereafter petitioned to withdraw. On April 20, 1978, Chief Justice Eagen granted leave to trial counsel to withdraw; and, on May 15, 1978, the Supreme Court ordered the case remanded to the trial court with directions to conduct an evidentiary hearing to determine whether trial counsel was ineffective. This appeal is from the order of the trial court which held that trial counsel was not ineffective and that appellant had not been denied his constitutional right to representation by competent counsel.
The sole issue we must decide in this appeal is whether trial counsel was ineffective for failing to request a charge on the elements of involuntary manslaughter.
In assessing the effectiveness of trial counsel, our task is to examine the record to see whether it supports a conclusion that the particular course chosen by counsel had some reasonable basis to effectuate is client's interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Before inquiring into the basis for counsel's failure to raise or pursue a certain issue at trial, we must determine if the issue is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
Thus the threshold question in this inquiry is whether a request for a jury instruction on involuntary manslaughter was of arguable merit. The trial in this case took place in April, 1977. Appellee contends that the absence of a specific request for a charge on involuntary manslaughter was in accord with the applicable law at the time of trial. Appellee
[ 270 Pa. Super. Page 474]
contends that the Supreme Court of Pennsylvania changed the law on October 7, 1977 in the case of Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977).*fn1 Appellee would have us conclude, since the trial here occurred prior to the holding in Polimeni, that there was no issue of arguable merit at that time and therefore trial counsel must be deemed not to have been ineffective.*fn2
Polimeni held that in a trial on a murder indictment, when there is evidence presented from whatever source that would permit the trier of fact to return a verdict of involuntary manslaughter, the defendant is entitled, upon request to a charge on the elements of involuntary manslaughter. Id., 474 Pa. at 436, 378 A.2d at 1191. In Polimeni, the Supreme Court also concluded: "We need not, however, consider whether the common law rule in Pennsylvania should be changed, for we are of the opinion that our holding in the case at bar is required by the new Pennsylvania Crimes Code, 18 Pa.C.S. § 101 et seq., which was in effect at the time of the commission of the crimes here involved." Commonwealth v. Polimeni, 474 Pa. at 438-39, 378 A.2d at 1193.
We would be forced to agree with appellee if we were of the view that Polimeni constituted a change from existing law. The Supreme Court has held to the contrary. In Commonwealth v. Warin, 484 Pa. 555, 558 ...