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decided: May 24, 1984.


No. 104 E.D. Appeal Dkt. 1983, Appeal from the Order of the Superior Court, March 4, 1983, at No. 423, Philadelphia, 1981, Reversing the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, with Respect to Information Nos. 542-544, May Session 1975.


Eric B. Henson, Deputy Dist. Atty., Sarah Vandenbrook, Asst. Dist. Atty., Gaele McLaughlin Barthold, Philadelphia, for appellant.

Kenneth L. Mirsky, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a concurring opinion.

Author: Mcdermott

[ 504 Pa. Page 567]


This is an appeal from the Order of the Superior Court, reversing defendant's conviction for third degree murder, and remanding the case for a new trial. The Superior Court concluded that because trial counsel was ineffective in failing to object when the jury was given a defective instruction on the issue of self-defense the defendant, Rodney Simmons, was entitled to a new trial. The Commonwealth sought discretionary review of this order, challenging it on two grounds. First they alleged that appellee was not entitled to a charge of self-defense where there was no evidence to support it; and secondly, they contended that the Superior Court erred when it considered sua sponte an issue not raised by either of the parties.

The facts of this case are as follows. On April 14, 1975, appellee Rodney Simmons was in the front seat of an automobile driven by one Kenny Biggs. In the back seat of the car there was an intoxicated individual who used the name "Nut." Sometime between 9 p.m. and 10 p.m. the automobile in question was in the vicinity of 29th and Clementine Streets in Philadelphia. At one point Biggs drove over to the side of the street where three individuals named Michael Jackson, Gregory LaMarr and Clarence Williams were standing. Appellee asked what street gang they were in, to which Williams took offense, apparently because they were not gang members. An argument ensued between appellee and Williams. According to testimony introduced at trial, the car pulled away and Williams proceeded to follow it with a stick in hand. When the car stopped at a red light on 29th and Allegheny Avenue Williams hid behind a tree. Meanwhile, an innocent passerby, Samuel McCrae, unwittingly was walking toward the feckless ruin of juvenile gang war. As Mr. McCrae turned the corner onto Allegheny Avenue appellee leaned across the driver's seat and fired a shot. Mr. McCrae went down to death.

[ 504 Pa. Page 568]

Appellee was tried in the Philadelphia Court of Common Pleas before the very able Judge Theodore S. Gutowicz, and a jury. A guilty verdict was returned for third degree murder and possession of an instrument of crime. Appellee was sentenced to ten to twenty years for the murder conviction, and two and one half to five years for the weapons conviction. Judgment of sentence was affirmed by this Court. Commonwealth v. Simmons, 482 Pa. 496, 394 A.2d 431 (1978). Appellee was represented by Richard P. Abraham, Esquire, at trial and in the unsuccessful appeal to this court.

Appellee, represented by new counsel, filed a petition under the Post Conviction Hearing Act (hereinafter "PCHA").*fn1 Following an evidentiary hearing the Honorable Edward J. Blake denied that petition. Represented by yet a third attorney appellee appealed to the Superior Court from denial of relief. The Superior Court reversed and remanded for a new trial, finding appellee's trial attorney, and PCHA attorney, to have been ineffective for failing to challenge the defective self-defense instruction. The Commonwealth's petition for en banc reargument was denied. The Commonwealth petitioned this Court for allowance of appeal and we granted allocatur.

In this appeal the Commonwealth contends that the Superior Court erred in finding the two attorneys ineffective for not challenging a defective self-defense instruction. The Commonwealth further asserts the Superior Court erred by sua sponte considering an issue not raised by the litigants.

When ineffectiveness of counsel is alleged the initial determination which must be made is whether the challenged inaction was of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If the claim is devoid of merit then counsel cannot be considered ineffective for having ...

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