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COMMONWEALTH PENNSYLVANIA v. HAROLD T. MCKENDRICK (08/18/86)

filed: August 18, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
HAROLD T. MCKENDRICK, APPELLANT



Appeal from the Judgment of Sentence January 9, 1981 in the Court of Common Pleas of Philadelphia County, Criminal No. 657 July T. 1977.

COUNSEL

Jack M. Myers, Philadelphia, for appellant.

Elizabeth J. Chambers, Assistant District Attorney, Philadelphia, for Com., appellee.

McEwen, Olszewski and Kelly, JJ. Kelly, J., files a dissenting opinion.

Author: Olszewski

[ 356 Pa. Super. Page 67]

This appeal comes before us as a result of a first degree murder conviction returned by a jury against Harold T. McKendrick, appellant. After post-verdict motions were denied, appellant was sentenced to a term of life imprisonment. In the appeal sub judice, appellant raised numerous issues for our consideration. Most, however, deal with trial counsel's ineffectiveness. Although we find each claim meritless, we shall undertake a discussion of them all seriatim. First, a thorough recitation of the facts and procedure is necessary.

According to witnesses' testimony, on October 23, 1976, William Cheeseborough, the victim, and his girlfriend had a violent argument, resulting in Cheeseborough being ejected from the residence. This, however, did not stop Cheeseborough from yelling. Appellant entered the scene and knocked at the door to offer his assistance. Allan Holman told appellant that there was no trouble and "to leave the boy (meaning Cheeseborough) alone." At this time, appellant

[ 356 Pa. Super. Page 68]

    announced that he was going to shoot the victim. A shot was fired at Cheeseborough's feet. He jumped back asking what that was for and was immediately shot at again. The second bullet was in the chest, piercing his heart and killing him. There were three potential eye-witnesses: Louisa Bennett, Annette Johnson, and Allan Holman. Neither woman knew appellant before the incident but both were able to identify him.

A warrant was issued on October 24 for the arrest of Harold McKendrick. He was not arrested, however, until 234 days later when he turned himself in. He was questioned by the police and denied knowledge of the shooting. At trial, his defense consisted of an alibi that he was present at a different location and that several other people had reason and motive to kill Cheeseborough.

Appellant's pre-trial counsel was Jack M. Myers, Esquire, at that time court-appointed, and now privately retained appellate counsel. Trial counsel was Benjamin Joseph, Esquire. After a decision on post-trial motions, he was permitted to withdraw and was replaced by David Sorin, Esquire. Mr. Sorin withdrew and Michael von Moschzisker, Esquire, was appointed to represent the appellant. A motion for a new trial and/or arrest of judgment was ultimately denied. Subsequently, Mr. von Moschzisker withdrew because of a change in employment and Michael McAlister, Esquire, was appointed to perfect an appeal to the Superior Court. He withdrew when Jack M. Myers, Esquire, once again took over.

I.

We shall deal with appellant's last issue first. Appellant was sentenced on January 9, 1981 and filed a timely appeal on January 14, 1981. Oral argument was heard on April 1, 1986. As of this time, no lower court opinion had been filed. One was filed, however, on April 7, 1986, approximately five years and three months after sentencing.

[ 356 Pa. Super. Page 69]

Appellant cites the recent Pennsylvania Supreme Court case of Commonwealth v. Hammer, 508 Pa. 88, 494 A.2d 1054 (1985) which involved a similar incident with the same judge. Like the Supreme Court, we strongly condemn the failure of the trial judge to file an opinion within a reasonable time. Despite the lack of a prompt filing, this is not in itself sufficient grounds for a new trial. In addition, we note that the completeness of the lower court opinion was a great aid in our disposition of the issues.

II.

Appellant argues that trial counsel's failure to object to comments*fn1 made by the judge during his instructions to the jury did not result in a waiver of that issue.

This situation is covered by Rule 1119(b) of the Criminal Rules of Procedure which states:

(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury.

Numerous cases have found issues waived if not objected to by relying on this rule. See, Commonwealth v. Hilton, 461 Pa. 93, 334 A.2d 648 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Waters, 334 Pa. Super. 513, 483 A.2d 855 (1984). Appellant cites Commonwealth v. Hammer, supra, as an exception to the rule that no objection at trial does not preserve the issue on

[ 356 Pa. Super. Page 70]

    appeal. The specific exception raised in Hammer deals with instances of judicial intemperance. This exception, however, is not absolute.

We turn now to the merits of appellant's claim. In finding no error by the trial judge, we rely on Commonwealth v. Cole, 274 Pa. Super. 106, 417 A.2d 1276 (1979). This Court stated:

When a defendant charged with murder requests a charge on voluntary manslaughter, the trial court may give its opinion on whether the facts show that the defendant committed voluntary manslaughter if the evidence supports the court's opinion, the court fully informs the jury of its power to return a verdict of guilty of voluntary manslaughter, regardless of whether the facts support that verdict, and if the court instructs that the jury is the finder of facts and is not bound to follow the court's opinion. Commonwealth v. Scaramuzzino, 485 Pa. 513, 403 A.2d 82 (1979) (plurality opinion) (citing cases).

Here, the trial judge had sufficient reasons to justify his comment. In addition, he informed the jury of its power to ignore his opinion and bring back a verdict of guilty to either voluntary or involuntary manslaughter. Because of this, there was no error in the instruction. See also, Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976).

III.

Eight of appellant's arguments allege ineffective assistance of counsel on the part of Benjamin Joseph, Esquire. While each instance shall be addressed individually, the law and standard that we apply remains the same.

Pennsylvania law regarding ineffective assistance of counsel is well documented. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), enunciated the process to be used as a two-pronged analysis consisting first of a determination of whether the issue underlying the ineffectiveness claim is of arguable merit,

[ 356 Pa. Super. Page 71]

    and second whether the course chosen by counsel had some reasonable basis aimed at promoting the appellant's interests. Commonwealth v. Pierce, 345 Pa. Super. 324, 498 A.2d 423 (1985); Commonwealth v. Cooper, 333 Pa. Super. 559, 482 A.2d 1014 (1984). Recently, an en banc Superior Court added another consideration. In addition to the above requirements, an appellant must establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial. Commonwealth v. Pierce, supra. At all times through the process, the law presumes ...


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