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submitted: February 8, 1983.


No. 3307 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 746, 747 July Term, 1970


William P. James, Philadelphia, for appellant.

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

Brosky, Cirillo and Lipez, JJ.

Author: Brosky

[ 316 Pa. Super. Page 399]

This is an appeal from the order dismissing appellant's Post Conviction Hearing Act (PCHA) petition after a hearing. Appellant contends trial counsel was ineffective: (1) for failing to object to the trial court's instruction to the jury concerning malice and second degree murder; (2) for failing to object to numerous improper comments by the prosecutor or for failing to raise such issues in post-verdict motions or on direct appeal; and (3) for failing to file a timely written motion to dismiss the action due to a violation of Pa.R.Crim.P. 1100. We disagree with appellant and affirm the order of the court below.

Appellant was arrested on April 27, 1970 and charged with the homicide of David Fineman, a Temple University student, which had occurred that same day. He was initially brought to trial on May 10, 1971 and was convicted of murder in the first degree. The judgment of sentence of life imprisonment was reversed by the Pennsylvania Supreme Court on McCutchen*fn1 grounds.

Appellant was retried and again convicted of first degree murder and sentenced to life imprisonment. On direct appeal, the Superior Court affirmed the conviction in Commonwealth v. Stanton, 269 Pa. Super. 305, 409 A.2d 901 (1979).

Appellant then filed a PCHA petition alleging various instances of ineffective assistance of counsel. This was the first time appellant was represented by counsel other than trial (who was also appellate) counsel. After a hearing, the court below denied relief and this timely appeal followed.

Appellant first contends that trial counsel should have objected to the following portions of the trial court's instructions to the jury:

[ 316 Pa. Super. Page 400]

Now, if you find that this killing by the defendant resulted from a voluntary act without justification or excuse, the presumption is that the killing is malicious. Therefore, being presumed to be malicious, the killing would be presumed to be murder. All unlawful malicious killings are murder, but it is only where the elements of first degree murder have been proved to your satisfaction that a conviction for that degree could be had.

The court further instructed the jury:

In all unlawful killings without justification or excuse, where the act of slaying was voluntary, the presumption is that it is murder of the second degree only and the burden is upon the Commonwealth to prove that it is first degree murder.

He argues that these portions of the charge created either a conclusive or a mandatory presumption that a killing which results from a voluntary act is malicious and is murder in the second degree. Such presumptions would constitute reversible error under County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

In our evaluation of appellant's contention, we note that "[t]his Court has consistently held that, in reviewing jury instructions for prejudicial and reviewable error, the charge must be read and considered as a whole . . . Error cannot be predicated on isolated excerpts of the charge. It is the general effect of the charge that controls." Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508, 510 (1978) (citations omitted).

In reviewing the whole charge, we first conclude that the court's instruction in the second paragraph quoted above simply served to distinguish for the jury the difference between first and second degree murder. The only presumption a reasonable juror could have interpreted the instruction as creating was that once murder was found, it was presumptively only second degree murder absent additional proof by the Commonwealth. Such a presumption

[ 316 Pa. Super. Page 401]

    certainly was not harmful to appellant, but was, if anything beneficial to him under the 1939 Penal Code.*fn2

As to the first paragraph quoted above, we find that the effect of the whole charge was to create merely a permissive presumption of malice.*fn3 For example, the trial court specifically stated the following in its charge:

Now, the use of a weapon such as a firearm, against a vital part of a person's body, such as the head or chest, is a fact from which you may infer the existence of malice.*fn4

A permissive presumption is constitutionally valid if it can "be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57, 82 (1969). We have no difficulty in concluding with substantial assurance that malice is more likely than not to flow from the proof of an "unlawful killing without justification or excuse, where the act of slaying was voluntary.

Appellant also argues that the questioned instruction shifted the burden of production or persuasion to appellant to show justification or excuse. Again, considering the entire charge, we believe the trial court clearly explained to

[ 316 Pa. Super. Page 402]

    the jury that the Commonwealth must prove all of the factors upon which guilt may depend.

Therefore, we find that objections on the above grounds to the questioned portions of the charge would have been meritless. Since counsel cannot be found ineffective for failing to advance a meritless claim, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), we find no merit to appellant's first issue.

Appellant next contends that his trial counsel was ineffective for failing to object to numerous improper and prejudicial arguments of the prosecutor and failing to raise such issues on post-verdict motions or on direct appeal where a timely objection had been made. After carefully reviewing appellant's myriad claims, we conclude that the opinion of the PCHA court below adequately disposes of this issue.*fn5

Appellant's final contention is that trial counsel was ineffective for failing to file a timely written motion to dismiss the prosecution due to a violation of Pa.R.Crim.P. 1100. Under Pa.R.Crim.P. 1100(e)(2), the Commonwealth was obligated to commence appellant's trial by May 27, 1976, the 120th day after the Supreme Court reversed his 1971 conviction. On May 26, appellant filed a motion to dismiss indictments because of pre-trial publicity. Although

[ 316 Pa. Super. Page 403]

    the motion could have been dismissed as untimely under Pa.R.Crim.P. 306 and 307, the court below allowed its filing on May 27, subject to a continuance until June 1, 1976 for the Commonwealth to prepare a response. Defense counsel agreed to this continuance. On June 1, the court denied the motion to dismiss and jury selection began that day.

Appellant argues that since trial did not begin on May 27, his rights under Rule 1100 were violated and, thus, that it was per se ineffectiveness for his trial counsel not to have raised the issue in a timely, written motion, see Commonwealth v. Foley, 269 Pa. Super. 71, 409 A.2d 68 (1979).

In support of his argument that Rule 1100 was violated, appellant notes that there is no indication that appellant himself sought to waive his Rule 1100 rights. However, this court has held that where counsel for a defendant agrees to a trial date beyond the end of the Rule 1100 period, the defendant may not later complain that Rule 1100 was violated. Commonwealth v. Hickson, 235 Pa. Super. 496, 344 A.2d 617 (1975); Commonwealth v. Daniels, 288 Pa. Super. 69, 431 A.2d 291 (1981); see Commonwealth v. Walley, 262 Pa. Super. 496, 396 A.2d 1280 (1978); but see Commonwealth v. Waldman, 484 Pa. 217, 398 A.2d 1022 (1979) (plurality).

Since defense counsel in the instant case agreed to a trial date beyond the end of the Rule 1100 period, we conclude the period between May 27 and June 1 was waived for purposes of Rule 1100. Also, we find that trial did, in fact, commence on June 1, 1976 with the beginning of voir dire. See Commonwealth v. Bellamy, 254 Pa. Super. 168, 385 A.2d 579 (1978).

Since there is no merit to a claim of a Rule 1100 violation, trial counsel cannot be held to be ineffective for failing to advance such a claim. Hubbard, supra.

Accordingly, we affirm the Order.

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