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COMMONWEALTH PENNSYLVANIA v. JOHNNY LEE ELLIS (04/25/80)

decided: April 25, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JOHNNY LEE ELLIS, APPELLANT



No. 191 March Term 1979, Appeal from the Order of the Court of Common Pleas, Orphans' Court Division, Beaver County at No. 985 of 1976.

COUNSEL

Robert F. Palmquist, Monaca, for appellant.

John Lee Brown, Asst. Dist. Atty., Beaver, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Eagen

[ 488 Pa. Page 595]

OPINION

Johnny Lee Ellis appeals from an order of the Court of Common Pleas of Beaver County which denied Ellis' amended post-conviction petition after a counseled hearing. For the reasons that follow, we affirm.

[ 488 Pa. Page 596]

The record reveals the following:

On September 13, 1976, Ellis was arrested on charges of murder, voluntary manslaughter, and involuntary manslaughter in connection with the shooting death of Robert Thompson. After a jury trial, Ellis was found guilty of voluntary manslaughter. Post-verdict motions were denied, and Ellis was sentenced to serve a term of four to eight years imprisonment, to pay the costs of prosecution, and to pay a fine of $500. Ellis filed a direct appeal in this Court limited to the issue of the sufficiency of the evidence to sustain the voluntary manslaughter conviction. On November 2, 1978, we affirmed the judgment of sentence in a per curiam opinion. Commonwealth v. Ellis, 481 Pa. 528, 393 A.2d 30 (1978).

On February 26, 1979, Ellis filed a pro se petition under the Post Conviction Hearing Act [hereinafter: PCHA], Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1979-1980). Counsel, other than trial counsel, was appointed to assist Ellis, and an amended petition was filed on June 1, 1979. After a counseled hearing, relief was denied. This appeal followed.

Ellis complains he was denied effective assistance of counsel because trial counsel failed to object to and subsequently assign as error on appeal the trial judge's withdrawal of the charge of involuntary manslaughter from the jury.*fn1 Essentially, this is a complaint concerning trial counsel's failure to request a charge on involuntary manslaughter. Ellis contends that, since there was evidence at trial on which a verdict of involuntary manslaughter could have been ...


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