No. 02074 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Philadelphia County No. 68-02-1092 (1083) 2/4, 68-02-1103 (1083) 4/
John M. McAllister, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cirillo, Del Sole and Popovich, JJ.
[ 332 Pa. Super. Page 102]
This is an appeal by George Bradley, appellant, from an order of the Court of Common Pleas of Philadelphia County which dismissed without a hearing appellant's second petition for relief under the Post-Conviction Hearing Act on May 19, 1982.
Appellant was convicted on May 26, 1969, of murder in the first degree and took a direct appeal to the Pennsylvania Supreme Court, which affirmed the conviction but vacated the sentence of death and ordered life imprisonment. Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972). On March 26, 1974, appellant petitioned pro se for post-conviction relief under the Post-Conviction Hearing Act,*fn1 which petition was dismissed without appointment of counsel. On February 28, 1977, upon appeal to the Supreme Court, the order dismissing appellant's PCHA petition was reversed, and the case was remanded for appointment of counsel. Commonwealth v. Bradley, 470 Pa. 602, 369 A.2d 1155 (1977). After appointment of counsel, on June 7, 1977, appellant filed an amended petition under the PCHA which alleged, inter alia, that the trial court erred in failing to charge the jury that it could return a verdict of guilty of voluntary manslaughter and that trial counsel was ineffective in failing to object to the trial judge's charge to the jury which allegedly precluded the jury from returning a verdict of voluntary manslaughter. The trial judge, finding those issues to have been waived, denied the petition for relief; however, his opinion does reach the merits of the underlying claim. The Pennsylvania Supreme Court thereafter
[ 332 Pa. Super. Page 103]
affirmed.*fn2 Commonwealth v. Bradley, 485 Pa. 230, 401 A.2d 744 (1979). On July 16, 1979, appellant filed the petition for relief under the PCHA which is the subject of this appeal. In his petition, appellant alleged that all prior counsel were ineffective in failing to preserve the claim that the trial judge erred in failing to instruct the jury on voluntary manslaughter and, indeed, that the trial judge's instructions precluded the jury from such a finding. This petition was denied without a hearing,*fn3 and this appeal followed. We affirm.
On appeal, appellant urges that the trial court erred in summarily dismissing his PCHA petition, where the issue of counsel's ineffectiveness was properly presented, and, thus, a waiver was precluded. By couching his argument "Each of Petitioner's previous court-appointed attorneys failed to render effective assistance of cousel [sic] which would have preserved the issue of trial counsel's effectiveness for review", appellant has properly preserved the underlying issue in the context of ineffectiveness of counsel. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). Since denial of appellant's first PCHA petition resulted in affirmance by the Pennsylvania Supreme Court solely on the basis of waiver, appellant has not had an opportunity to appeal the merits of his claim.
[ 332 Pa. Super. Page 104]
On December 15, 1967, appellant, along with two other men, entered a bar in Philadelphia. The owner and a patron were in the bar at this time. Upon entry, appellant drew a pistol, while his accomplices shouted "This is a stick-up." (T. 498). One of appellant's cohorts threw the patron, who was an old man, to the floor, knocking him unconscious, and the other grabbed the owner, hurled him to the floor and screamed, "Move, mother fucker, and I'll kill you". (T. 499). Appellant relinquished his gun to one of his companions while he removed the money from the cash register and a cigar box used for charitable contributions. He also grabbed two bottles of liquor. The owner, who was relegated to the floor, was shot to death at close range. The trio fled the bar, and appellant was arrested on December 19, 1967. Appellant was tried by a jury on charges of murder of the first and second degree and aggravated robbery. The court charged, inter alia,
"Now, members of the jury, one of the sub-divisions of the crime of murder in Pennsylvania is voluntary manslaughter. It is my opinion, and I charge you now, that it is my opinion that the offense of voluntary manslaughter is not involved in this case at all. I instruct you, therefore, under the circumstances, that I do not ...