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filed: December 21, 1988.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 8508-363-364.


William P. Fedullo, Philadelphia, for appellant.

Suzan Willcox, Assistant District Attorney, Philadelphia, for Com., appellee.

Wieand, McEwen and Melinson, JJ.

Author: Wieand

[ 381 Pa. Super. Page 384]

Mitchell Copeland was tried by jury and was found guilty of murder in the first degree. Post-trial motions were denied, and Copeland was sentenced to serve a term of life imprisonment. A direct appeal was filed in the Superior Court, after which trial counsel was permitted to withdraw and present counsel was appointed. The arguments now made in the direct appeal are that (1) the trial court erred in denying a motion to suppress statements which appellant had made to police; (2) the prosecuting attorney was guilty of misconduct in the delivery of the opening and closing addresses; (3) the trial court's rulings and responses to defense counsel demonstrated bias and prejudice; (4) the trial court erred in refusing to admit photographs of burns which appellant had allegedly sustained prior to the killing; (5) the trial court erred when it refused to instruct the jury that throwing hot water or acid on a person could be deemed adequate provocation within the definition of voluntary manslaughter; and (6) trial counsel rendered ineffective assistance. We find no merit in Copeland's first five contentions but remand for an evidentiary hearing on his claim that defense counsel rendered ineffective assistance when he failed to convey to his client a plea bargain offered by the Commonwealth.

On July 27, 1985, at or about 10:40 p.m., the battered and blood covered body of seventy year old Victoria Alford was found by police in the kitchen of an apartment which she had shared with appellant. Appellant was found shirtless

[ 381 Pa. Super. Page 385]

    near the body of the decedent. He had blood and scratch marks on his neck and shoulders, and on his chest were red blotches which appeared rash-like. His sneakers were also covered with blood and had made imprints in the blood around the victim's body. Appellant initially denied culpability. Later, at the police administration building, after having been informed of his Miranda rights for a second time, appellant gave a written statement in which he said that he had slapped and shoved Ms. Alford after she had burned him by throwing hot water on his chest. As to Alford's death, appellant suggested that she must have fallen and struck her head. Police took photographs of appellant's chest and then took him for preliminary arraignment about 4:00 a.m. the next morning. He was thereafter taken to the hospital for treatment and was found to have sustained second degree burns of his chest.

Post-mortem examination of the victim revealed more than one hundred abrasions of her body. The absence of fractures suggested repeated blows of moderate force, inflicted by a relatively soft object. Other evidence prompted an opinion that blows had been inflicted while the victim was alive but in a prone position, perhaps by being kicked by a person wearing sneakers.

Appellant's contention that the trial court erred by refusing to suppress evidence of his oral and written statements has been waived. The court's suppression ruling was not alleged as error in appellant's post-trial motions or supplemental post-trial motions. It is well settled that only issues raised in post-trial motions are preserved for appellate review. Commonwealth v. Gravely, 486 Pa. 194, 198-199, 404 A.2d 1296, 1298 (1979); Commonwealth v. Heckman, 366 Pa. Super. 224, 227, 530 A.2d 1372, 1373 (1987); Commonwealth v. Thier, 354 Pa. Super. 7, 9, 510 A.2d 1251, 1252 (1986), alloc. denied, 515 Pa. 578, 527 A.2d 539 (1987), cert. denied, U.S. , 108 S.Ct. 142, 98 L.Ed.2d 98 (1987). Moreover, after reviewing the record of the pre-trial suppression hearing and the findings made by

[ 381 Pa. Super. Page 386]

    the hearing court, we are satisfied that appellant's suppression motion was properly denied.

Because appellant failed also to preserve in post-trial motions the alleged misconduct of the prosecuting attorney, this issue, too, has been waived.

We find no merit in appellant's contention that the trial court demonstrated bias and prejudice against the defense. Although there were several acrimonious exchanges between the trial judge and defense counsel, our review of the record discloses that they were almost uniformly precipitated by defense counsel's angry responses to rulings made by the trial judge. When the exchanges between court and counsel are examined in the context in which they occurred, it cannot be said that the trial judge demonstrated a failure to preside in an impartial and evenhanded manner.

At trial, appellant's defense was that the victim had provoked retaliation by throwing either hot water or sulphuric acid on his chest and that his crime, therefore, was voluntary manslaughter. To establish severe burning of his chest, appellant sought to introduce photographs of the scarring of his chest at the time of trial. The trial court disallowed the photographs, holding that the condition of appellant's chest after the burns had been treated was not relevant. More specifically, the trial court wrote in its post-trial opinion as follows:

Defendant attempted to introduce photographs of himself taken at the time of trial which showed the effects of treatment, scarring, and surgery done to alleviate injuries sustained one and one-half years earlier at the time defendant was arrested. Since defendant was alleging that the injuries were inflicted by the victim and were adequate provocation for the attack which caused her death, this Court cannot see the relevancy in demonstrating those effects which were, in fact, created by treatment. The photos were not of the wounds allegedly inflicted by the victim and thus were not competent evidence.

[ 381 Pa. Super. Page 387]

Defendant had available to him photos of the injuries taken the night they occurred; he chose not to introduce them. These photos, taken hours after the murder, would have had probative value to the jury which was the final arbiter of whether the wounds or the circumstances of their inflictions were adequate provocation for murder.

Since defendant has not met the threshold inquiry of relevancy, his contention that the Court failed to rule on the inflammatory nature of the photos has no basis. Concerning the matter of relevancy, it has been said that: "The law furnishes no test of relevancy, but tacitly refers it to logic and general experience. Evidence is admissible which tends to make the fact at issue more or less probable or intelligible or to show the origin and history of the transaction between the parties and explain its character." Gregg v. Fisher, 377 Pa. 445, 454, 105 A.2d 105, 110 (1954). Therefore, issues of relevancy are left in large measure to the sound discretion of the trial court, whose decisions will not be reversed in the absence of a clear abuse of discretion. See: Commonwealth v. Saksek, 361 Pa. Super. 173, 522 A.2d 70 (1987); Commonwealth v. Underwood, 347 Pa. Super. 256, 500 A.2d 820 (1985); Commonwealth v. Jackson, 336 Pa. Super. 609, 486 A.2d 431 (1984); Commonwealth v. Lumpkins, 324 Pa. Super. 8, 471 A.2d 96 (1984).

Commonwealth v. Sullivan, 372 Pa. Super. 88, 96, 538 A.2d 1363, 1368 (1988).

Whether photographs of appellant's scarred chest after treatment for second degree burns were relevant to show injury constituting sufficient provocation to reduce murder to voluntary manslaughter is a close question. "Analyzing and weighing the pertinent costs and benefits is no trivial task. Wise judges may come to differing conclusions in similar situations. Even the same item of evidence may fare differently from one case to the next, depending on its relationship to the other evidence in the cases and the importance of the issues on which it bears." McCormick on

[ 381 Pa. Super. Page 388]

Evidence § 185 at 546 (3d ed. 1984). It is precisely for this reason that "much leeway is given trial judges who must fairly weigh probative value against probable dangers." Id. at 546-547.

In the instant case, the trial court excluded the tendered photographs because they did not depict the condition of appellant's chest at the time of the killing. Although the issue of relevancy is a close one, we cannot say that the ruling of the trial court was an abuse of discretion. As the trial court observed, photographs were available for appellant's use which depicted the condition of his burned chest shortly after he had been arrested on the day of the killing and were not used.

The evidence showed that the killing had occurred following an argument between the victim and the defendant. The evidence was undisputed that the defendant had sustained second degree burns on his chest. Appellant had said in his statement to police that Victoria Alford had thrown hot water on him. Other evidence showed that there had been sulphuric acid on the defendant's shoes and trousers; and the defense argued, therefore, that Alford had poured acid on the defendant. As a result of this provocation, the defense asked the jury to find that appellant had been burned and had killed Alford while in the heat of passion or rage caused by the burning injury which he had sustained.

The law of voluntary manslaughter has been summarized at 17 P.L.E. Homicide § 32 in relevant part as follows:

Under the Crimes Code, a person who kills another without lawful justification commits voluntary manslaughter if, at any time of the killing, he is acting under a sudden and intense passion resulting from serious provocation by the victim . . . . As defined by the courts, voluntary manslaughter is the intentional and unlawful killing of a human being without malice, either express or implied, ...

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