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.
[ 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 ...