No. 84 March Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. CC7806449 and CC7806433
John H. Corbett, Jr., Chief, App. Division, David Metinko, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Charles W. Johns, Kathryn L. Simpson, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
Appellant, William Lloyd Webster, Jr., a/k/a William Webster Bey, was convicted of murder of the third degree for the shooting death of Wendell Byrd. Post-verdict motions were denied and appellant was sentenced to a prison term of not less than nine nor more than eighteen years. This direct appeal followed.
The facts are as follows. On November 2, 1978, the victim drove past appellant and shouted that he wished to speak to him. Appellant's companion at the time testified at trial that the victim did not sound angry; rather she characterized his manner as friendly. The victim parked his automobile and appellant escorted him out of the vehicle. The two men proceeded to a nearby alley (one eyewitness testified that appellant pulled the victim along by the arm) where an argument ensued. Testimony at trial indicated that the victim appeared to be pleading as appellant pointed a gun at the victim's face. One shot was fired; the victim slumped to the ground and appellant fled the scene.
Appellant, now represented by counsel other than his trial counsel, first claims that trial counsel was ineffective for failing to properly preserve the most meritorious issue in his case -- that he acted in self-defense. Appellant took the stand in his own defense at trial, testifying that Wendell Byrd pointed a gun at him, and in the ensuing struggle the gun discharged. Trial counsel submitted points for charge, the second of which simply stated "self-defense." The trial judge denied the request and appellant's prior counsel never took exception to the charge or the denial of the point for charge. The issue was not raised in appellant's post-verdict motions.
Issues not raised in post-verdict motions will not be considered on appeal. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). An exception exists, however, when ineffective assistance of prior counsel is raised. In such a case, ineffectiveness of prior counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents appellant. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). This is the first stage of the proceedings at which trial counsel is no longer representing appellant; allegations of his ineffectiveness are properly raised in this direct appeal. Thus, our analysis of the abandoned claim is undertaken solely for the purpose of resolving the claim of ineffective representation.
The statutory definition of self-defense is set forth in the Act of December 6, 1972, P.L. 1482, No. 334, § 1, effective June 6, 1973, 18 Pa.C.S.A. § 505(a):
"The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of ...