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COMMONWEALTH PENNSYLVANIA v. JAMES DAVENPORT (07/08/81)

decided: July 8, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES DAVENPORT, APPELLANT



Nos. 57 and 177 January Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Criminal Trial Division, at Nos. 689-694 April Term, 1977.

COUNSEL

Melvin Fisher, Mitchell S. Strutin, Philadelphia, Philadelphia County, for appellant.

Robert B. Lawler, Chief, Appeals Div., Sarah Vandenbraak, Philadelphia, Philadelphia County, for appellee.

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

Author: Roberts

[ 494 Pa. Page 533]

OPINION OF THE COURT

These are appeals from the judgment of sentence imposed on convictions arising from a robbery and stabbing death. Represented by new, appointed counsel, appellant James Davenport contends that his privately-retained trial counsel provided constitutionally ineffective assistance by failing to pursue the theory that appellant was voluntarily intoxicated when the alleged offenses were committed. We conclude that there was a reasonable basis for trial counsel's strategy of not pursuing a theory of voluntary intoxication. Hence we affirm.

The victim, Vernon Arline, was robbed and stabbed by appellant shortly after midnight, March 16, 1977, and died four days later. At trial, conducted in August of 1977, the Commonwealth sought to prove both an intentional killing, 18 Pa.C.S. § 2502(a) (murder of the first degree), and felony-murder, 18 Pa.C.S. § 2502(b) (murder of the second degree). The Commonwealth also charged appellant with voluntary manslaughter, 18 Pa.C.S. § 2503. The Commonwealth presented the testimony of Philadelphia police officers who observed the stabbing, and saw appellant attempt to discard the victim's wallet as he fled from the scene of the crimes. The Commonwealth also presented the testimony of a police officer who interrogated appellant. This officer related appellant's statement that he had robbed and stabbed the victim, as well as his statement that he and two others, Nola

[ 494 Pa. Page 534]

Romero and Lloyd Carter, had been parties to a plan to rob the victim.*fn1

In his testimony, appellant admitted that he had stabbed the victim with a knife, but claimed that he had done so only after the victim, who was "pretty drunk," had swung the same knife at him. He denied robbing the victim, and stated that he had been in the car with the victim only to help him home. He further denied the validity of the Commonwealth's version of his statement to police, and claimed that his statement to police was in conformity with his trial testimony.

Appellant related that he had been drinking on the evening of the alleged offenses, but gave no indication that he had been intoxicated. Both on cross-examination and on rebuttal, the Commonwealth sought to refute any suggestion of intoxication.

The court's charge included definitions of murder of the first and the second degree as well as both types of voluntary manslaughter, heat-of-passion and imperfect self-defense. Additionally, alluding to the fact that "there was testimony by the defendant that he had been drinking prior to the incident involved here," the court charged the jury ...


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