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COMMONWEALTH PENNSYLVANIA v. TERRY WALLER A/K/A TERRY WALLACE (04/14/83)

submitted: April 14, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
TERRY WALLER A/K/A TERRY WALLACE, APPELLANT



No. 387 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 429-431, 433 Oct. 1973.

COUNSEL

Norris E. Gelman, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.

Hester, Popovich and Hoffman, JJ. Popovich, J., concurred in the result. Hester, J., filed a dissenting statement.

Author: Hoffman

[ 322 Pa. Super. Page 13]

Appellant alleges ineffectiveness of both trial and PCHA counsel in failing to adequately challenge the lower court's second degree murder instructions. We agree and, accordingly, reverse and remand.

On September 6, 1973, appellant was arrested and charged with murder, conspiracy and possession of an instrument of crime in connection with the shooting of a rival gang member. Following a jury trial on September 20, 1974, appellant was convicted of second degree murder and criminal conspiracy, and sentenced to consecutive terms of ten-to-twenty years imprisonment for murder and five-to-ten years for conspiracy. Our Supreme Court affirmed the judgment of sentence. Commonwealth v. Wallace, 475 Pa. 27, 379 A.2d 558 (1977). Appellant's subsequent Post Conviction Hearing Act (PCHA) petition was denied by the lower court on January 27, 1981, prompting this appeal.

[ 322 Pa. Super. Page 14]

"[C]counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967) (emphasis in original). First, however, we must determine whether the issue underlying the charge of ineffectiveness is of "arguable merit". Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980); accord, Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977). Here, appellant's trial counsel failed to object or to take exception to the jury charge on second degree murder. We must therefore determine if the charge adequately and accurately set forth the law. Commonwealth Page 14} v. Wike, 269 Pa. Superior Ct. 141, 144, 409 A.2d 104, 105-06 (1979).

In evaluating the correctness of a jury charge, the charge must be read in its entirety and the general effect of the charge controls. Commonwealth v. Zettlemoyer, 500 Pa. 16, 46, 454 A.2d 937, 953 (1982); Commonwealth v. Lesher, 473 Pa. 141, 148, 373 A.2d 1088, 1091 (1977); Commonwealth v. Rodgers, 459 Pa. 129, 132, 327 A.2d 118, 120 (1974). The portion of the jury instructions at issue is as follows:

Now, in dealing with murder in the second degree, in order to not confuse you, but at the same time to make you fully aware, the difference between murder in the first degree and murder in the second degree primarily is this: that there is no malice aforethought. You just heard me define for you malice. Murder in the second degree is an intentional killing but without premeditation and without malice. That is to say, there is no legal justification for the killing. There was not necessarily a plan that was thought up, thinking before and there was no malice aforethought. Suppose I give you an example. An individual becomes very angry and he has no cause for becoming angry and as a result of this anger he picks up a weapon and he kills someone. This would constitute murder in the second degree. There is no lying in wait, there is no use of poison, there has been no premeditation. There has been no malice aforethought as defined by me. That is depravity of heart, cruelty, recklessness of the consequences, a disposition of mind regardless of social duty.

(N.T. October 4, 1974 at 178-79) (emphasis added). It is clear that the trial court incorrectly charged the jury that the crime of second degree murder does not require malice ...


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