decided: September 22, 1983.
COMMONWEALTH OF PENNSYLVANIA
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.
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.
[ 502 Pa. Page 157]
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 therefore pursuing that particular objection would have in no way furthered the objectives sought to be achieved by the defense.
It is clear from the record this assertion of ineffectiveness is totally without merit and does not warrant the relief requested.
Next, appellant claims that he was deprived of a fair trial because of improper remarks contained in the prosecutor's closing address to the jury and that trial counsel was ineffective in failing to preserve this claim. This issue was raised in appellant's P.C.H.A. petition. The prosecutor addressed the jury as follows:
Law and order, ladies and gentlemen, is only as strong as that chain, it is only as strong as its weakest link. I,
[ 502 Pa. Page 160]
the District Attorney, have laid all the evidence in front of you. The police have gone out and investigated this case, and they have come up with this evidence. But you, ladies and gentlemen, are the last link in this chain, because you will decide what this Defendant is guilty of and it is only your decision that is going to be heard out in the streets in Philadelphia. You are the people, and you are the ones that determine if this is going to keep going on. All of you live in different neighborhoods in different parts of the City.
I am sure you remember back, years ago, when in every neighborhood you could find a corner grocery store, a corner drugstore. Today, you can't and you all know why.
At this point, trial counsel objected and was overruled. The prosecutor continued, "because it's only you that will determine the future of what's going to happen to this City . . ." Trial counsel immediately moved for a mistrial claiming these comments improperly appealed to the jury's emotions.
It is well settled that comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982); Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968).
In this case the prosecutor's remarks were designed to make the jury aware of the effect of its verdict on the community. It is legitimate to suggest within reasonable bounds the impact of the offenders behavior upon society as a whole. See Commonwealth v. Gwaltney, supra; Commonwealth v. Nesbitt, 276 Pa. Super. 1, 419 A.2d 64 (1980). The prosecutor's statement merely reflected considerations that the jury would undoubtedly have considered even absent the articulation of them by the prosecutor. It is true that we have frowned upon attempts to cause the jury to consider facts other than those raised in the particular case before it.
[ 502 Pa. Page 161]
By its definition, voluntary manslaughter is essentially an admission of the act of killing, justified by passion and provocation. It ought not be a substitute for an unproven charge of murder or "mercy".
Therefore, I join in the opinion of the majority that the trial court did not err in refusing to instruct the jury on voluntary manslaughter under 18 Pa.C.S.A. § 2503(b).