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COMMONWEALTH PENNSYLVANIA v. HARVEY TABRON (09/22/83)

decided: September 22, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
HARVEY TABRON, APPELLANT



No. 80-3-814, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia, Denying Post-Conviction Relief on Information Nos. 1423, 1426 and 1429, April Session, 1976.

COUNSEL

Burton A. Rose, Philadelphia, (court-appointed), for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Robert Ciaffa, Asst. Dist. Atty., for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. McDermott, J., joins in this opinion and files a concurring opinion. Roberts, C.j., concurs in the result.

Author: Nix

[ 502 Pa. Page 157]

OPINION

This appeal arises from an incident which occurred on April 2, 1976 at which time Carmen Falanga was killed in the course of a robbery. Appellant was found guilty of murder of the second degree and two counts of robbery. He was sentenced to life imprisonment for the murder conviction and to two concurrent terms of 10-20 years on the robbery charges. Post-verdict motions were denied and no appeal was taken. Appellant filed a petition for relief under the Post Conviction Hearing Act.*fn1 An amended petition was filed and was subsequently denied. This appeal followed.

In this appeal, appellant claims that P.C.H.A. counsel and trial counsel were ineffective in failing to preserve the issue of the trial judge improperly refusing to instruct the jury on the "unreasonable belief"*fn2 aspect of voluntary manslaughter in addition to the "heat of passion" aspect.

The test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his clients' interest. In making this assessment, we are not to employ a hindsight evaluation to determine whether there was a reasonable basis for the course of action actually selected. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979);

[ 502 Pa. Page 158]

    first to second degree was certainly well advised in the best interest of his client. Moreover, it cannot be ignored that trial counsel was successful in accomplishing his intended purpose.

The argument of ineffectiveness instantly raised is predicated upon the existence of certain case law which suggested that a defendant had the right if requested to have the "unreasonable belief" theory of voluntary manslaughter explained to the jury irrespective of whether the evidence supported the finding. Commonwealth v. Schaller, 493 Pa. 426, 426 A.2d 1090 (1981); Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978); Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, cert. denied 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974); but see Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983).

In this case the jury was in fact given voluntary manslaughter as one of the alternative verdicts. However, counsel did not preserve the exception to the trial judge's refusal of the additional explanation under section 2503(b). The fact that the defendant may have been entitled to such a charge under the law at that time does not in this case suggest a dereliction on the part of trial counsel. It is obvious that such a charge was totally unrelated to the theory of the defense and ...


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