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COMMONWEALTH PENNSYLVANIA v. KENDALL MAGWOOD (01/04/88)

submitted: January 4, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
KENDALL MAGWOOD, APPELLANT



Appeal from the Judgment of Sentence of October 21, 1985 in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC 8502445.

COUNSEL

Claudia Davidson, Pittsburgh, for appellant.

Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.

Brosky, Johnson and Hoffman, JJ.

Author: Hoffman

[ 371 Pa. Super. Page 621]

This appeal is from the judgment of sentence for carrying a firearm without a license, 18 Pa.C.S.A. ยง 6106. Appellant contends that prior counsel was ineffective for failing to request appropriate jury instructions and raise the proper objection to the court's erroneous jury instructions. For the reasons that follow, we find that appellant's claim is meritless and, accordingly, affirm the judgment of sentence.

The determination whether counsel rendered ineffective assistance is arrived at through a two-prong test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1982). Second, if appellant's claim does have arguable merit, we must determine whether "the course chosen by counsel had some reasonable basis designed to serve the best interests of the client." Commonwealth v. Buehl, supra (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967)).

If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel's ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 161, 527 A.2d 973, 976 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test

[ 371 Pa. Super. Page 622]

    announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra. Under Strickland, to prove that counsel's ineffectiveness resulted in prejudice, an appellant must show that the error was "so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable." Strickland v. Washington, supra at 686, 104 S.Ct. at 2064.

Appellant maintains that, during the charge to the jury, the trial court erroneously defined the term "possession".*fn1 Appellant contends that trial counsel was ineffective for failing to raise the proper objection to the court's charge and for failing to request an appropriate definition. Under the analysis set forth above, we first must determine whether appellant's underlying contention -- that the jury charge was erroneous -- possesses arguable merit. We conclude that it does not.

Our standard of review in determining whether a jury instruction is proper is well-settled. "A court's charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations." Commonwealth v. Person, 345 Pa. Superior Ct. 341, 345, 498 A.2d 432, 434 (1985) (citations omitted). See also Commonwealth v. Bey, 249 Pa. Superior Ct. 185, ...


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