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COMMONWEALTH PENNSYLVANIA v. FLOYD MCCLOUD (01/21/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 21, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
FLOYD MCCLOUD, APPELLANT

NO. 1391 PHILADELPHIA, 1981, Appeal from the judgment of sentence of May 06, 1981, in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at No C.P. 815-October Term, 1980. 818

COUNSEL

Arlan Ryna Mintz, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Wieand and Beck, JJ.

Author: Beck

[ 309 Pa. Super. Page 317]

Appellant, Floyd McCloud, was convicted by a jury of murder in the first degree and possessing an instrument of crime. Timely post-verdict motions were filed and denied, and appellant was sentenced to a term of life imprisonment on the former charge and a consecutive term of from two and one-half to five years on the latter.

Appellant alleges initially that trial counsel was ineffective for failing to request a jury charge stating the specific elements of self-defense and then failing to object when the court failed to instruct on self-defense. He admits

[ 309 Pa. Super. Page 318]

    that his trial counsel requested a "general" self-defense charge and that one was given to the jury, but he states that the trial judge "never specifically mentioned the elements of self-defense." Appellant's Brief at 8.

We find no support in the record for appellant's claim that the specific elements of self-defense were not included in the jury charge. The Crimes Code delineates the elements of self-defense at 18 Pa.C.S.A. ยง 505:

(a) Use of force justifiable for protection of the person. -- The use of force upon or toward another person is justifiable when the actor believes*fn1 that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

Section 505(b)(2) sharply limits this defense when deadly force is used:

The use of deadly force*fn2 is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat[.]

And section 505(b)(2)(ii) makes the defense unavailable where "the actor knows that he can avoid the necessity of using such [deadly] force with complete safety by retreating[.]"

We find that the trial judge specifically charged on self-defense. He correctly instructed the jury that the burden is upon the Commonwealth to disprove beyond a reasonable doubt self-defense. Commonwealth v. Adams, 273 Pa. Super. 484, 487, 417 A.2d 751, 753 (1979). He charged the jury that "[y]ou may find the defendant guilty only if you are satisfied beyond a reasonable doubt that [appellant] did not reasonably believe that the use of deadly force was then

[ 309 Pa. Super. Page 319]

    and there necessary to protect himself against death or serious bodily injury." Notes of Testimony ("N.T.") at 7.182-.183. He correctly defined deadly force according to the aforementioned definitional section. He also correctly tracked the language of section 505(b)(2)(ii): "[Y]ou may find the defendant guilty if you are satisfied beyond a reasonable doubt that the defendant knew that he could avoid the necessity of using deadly force with complete safety by retreating from Robert Dulaney outside on the street where the alleged incident occurred." N.T. at 7.183.*fn3

We find the trial court's charge correctly enunciated the elements of self-defense under section 505. Accordingly, we reject appellant's claim that trial counsel was ineffective in failing to object when the charge was given to the jury. "[C]counsel is not ineffective in failing to assert a baseless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977)." Commonwealth v. Schroth, 495 Pa. 561, 564, 435 A.2d 148, 149 (1981).

Appellant next alleges that the trial court erred in charging the jury that testimony of Dr. Kenneth Kool, the defense psychiatrist, "is evidence of low quality and is not entitled to too much consideration." N.T. at 7.160. This we find to be an accurate statement of the law and accordingly we find no error in so instructing the jury. While it is clear that psychiatric testimony is admissible to prove the defendant's subjective belief that he is in danger of imminent death or serious bodily injury, see, e.g., Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974), it is equally clear "that an opinion is only an opinion. It creates no fact. Because of this, opinion evidence is considered of a low grade and not entitled to much weight against positive testimony of actual facts such as statements by the defendant and observation of his actions." The foregoing instruction was upheld as being a correct statement of the law in

[ 309 Pa. Super. Page 320]

    of scientific evaluation of any sort (N.T. 6.196-6.201, 3-2-81).

Whether an alleged expert is qualified rests, to a very considerable extent, within the trial Court's discretion. Kravinsky v. Glover, 263 Pa. Super. 8, 396 A.2d 1349 (1979). Generally, if a witness has any reasonable pretension to specialized knowledge on the subject under investigation, he will be permitted to testify and leave the weight to be given his testimony to the jury. Kravinsky v. Glover, supra. Further, a person will be permitted to testify as an expert even though his knowledge has been acquired through the medium of practical experience rather than through scientific study and research. Churbuck v. Union R. Co., 380 Pa. 181, 110 A.2d 210 (1955).

There being no reasonable evidence of scientific study or practical experience which would qualify Officer Palmer in the areas of forensic pathology or firearms examination, it was proper for the trial Court to refuse to allow him to testify as an expert witness capable of rendering an educated opinion.

Lower Court Opinion at 9-11.

Judgment of sentence affirmed.


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