Appeal from the Judgment of Sentence of December 22, 1987 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 1086-89 JAN 1986.
Irene H. Cotton, Philadelphia, for appellant.
Norman Gross, Assistant District Attorney, Philadelphia, for Com.
Montemuro, Popovich and Hoffman, JJ.
[ 381 Pa. Super. Page 609]
This appeal is from the judgment of sentence for third degree murder and various weapons offenses. Appellant raises six claims of trial court error, as well as four claims of ineffective assistance of counsel. For the reasons that follow, we affirm the judgment of sentence.
On October 24, 1986, following a bench trial, appellant was convicted of murder in the third-degree, possession of an offensive weapon, and possession of an instrument of crime. Post-verdict motions were filed and denied. On December 22, 1987, appellant was sentenced to an aggregate term of six-to-fifteen-years imprisonment. Appellant's motion to modify sentence was filed and denied, and this appeal followed.
[ 381 Pa. Super. Page 610]
Appellant first contends that the evidence was insufficient to support the verdict. The well-established standard for reviewing sufficiency claims was recently stated by our Supreme Court:
[W]hether, viewing the evidence in the light most favorable to the Commonwealth [as verdict winner], and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt . . . . The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence . . . . Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered . . . .
Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) (quoting Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979) (citations omitted)).
The trial court aptly summarized the evidence as follows:
On the evening of December 24, 1980, Dwayne Brown [the victim] and a friend, Paul McLaurin, entered the dry-cleaning establishment at 24th and Somerset where defendant was employed. According to McLaurin, Brown had invited him to a party at the cleaners, which was a disguise for an illegal numbers operation. When the two men entered they encountered the defendant and conversed briefly with him and others before returning outside. Shortly thereafter another acquaintance, Eddie Capel, who had also been at the "party," joined them outside and began a conversation. A few minutes later, defendant appeared outside with a shotgun, said something to Brown, and shot him once in the chest. When the police arrived, defendant was gone and McLaurin was huddled over his injured friend.
A stipulation established that an autopsy had determined that Brown died of a gunshot wound to the chest, fired from between two and eight feet away from the
[ 381 Pa. Super. Page 611]
deceased. Also stipulated was the fact that the gastric alcohol content of Brown's blood exceeded the legal limit for driving while intoxicated.
The Commonwealth also presented [two statements that had been taken from defendant]. In each statement defendant's story was essentially the same:
On the evening of December 24, 1980, he was employed at Sonny Booth's cleaners at 24th and Somerset, which was indeed a "front" for a gambling operation. Brown and McLaurin came in to see Sonny, and Brown became angry when the defendant informed the men that Sonny was not there. Brown lunged at the defendant, and as McLaurin pulled him away from defendant and toward the door, defendant saw what appeared to be the handle of a gun protruding from Brown's pants. As McLaurin finally pulled Brown out of the door, Brown threatened to kill defendant. Defendant, then fearing for his own safety, sent his friend Rick Thomas out to his car to get a gun he was keeping there for a friend. While Thomas was gone, defendant told Eddie Capel, who had just arrived, of the confrontation, and Capel went outside to attempt to calm Brown. Thomas then returned with the gun, and, when defendant heard the men outside begin to argue, he took a drink of whiskey and hid in the outside cellarway with the gun. When Brown saw defendant peeking around the corner he took a step in defendant's direction and reached into his shirt. Defendant, believing that Brown was reaching for a gun, emerged from the cellarway with his own gun and shot Brown.
The Commonwealth's final witnesses were Philadelphia Police Officer James Jackson and Detective Michael Cubbage, who were called to the shooting scene. When they arrived they found the deceased on the ground with McLaurin hovering over him, refusing to leave until the police wagon arrived. After attending to Brown the
[ 381 Pa. Super. Page 612]
officers arrested McLaurin. They did not find any weapons on Brown or McLaurin.
The final defense witness was the defendant . . . . In addition to relating the events as they appeared in his prior statements, defendant testified that he had known the deceased and McLaurin from the neighborhood. He had believed the object in Brown's pocket was a gun because the deceased had a reputation for carrying a gun and for robbing people. When he went outside and hid in the cellarway, he heard Brown say, "There's that m/--f--- right now. I'll blow his m/--f--- brains out right now!" And for that reason he perceived that his life was in immediate peril.
Trial Court Opinion at 2-5. Appellant specifically argues that there was insufficient evidence of malice to support the murder verdict. We disagree. "In order for a willful or intentional killing to constitute murder, the Commonwealth must establish malice beyond a reasonable doubt." Commonwealth v. Carbone, 375 Pa. Super. 261, 544 A.2d 462, 466 (1988) (en banc). See also Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972); Commonwealth v. Thomas, 403 Pa. 553, 170 A.2d 112 (1961).*fn1 Malice is the element that distinguishes murder from manslaughter. See Commonwealth v. Weinstein, 499 Pa. 106, 115, 451 A.2d 1344, 1348 (1982).
Malice "'comprehends not only ill will, but every case where there is a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.'" Commonwealth v. Carbone, supra 375 Pa. Super. at 271, 544 A.2d at 466 (quoting
[ 381 Pa. Super. Page 613]
appellant's duty to retreat, appellant maintains that the court in effect "misinstructed itself" and therefore improperly found that the Commonwealth met its burden of showing beyond a reasonable doubt that the killing was not in self-defense.*fn2
In order to negate a claim of self-defense, the Commonwealth must establish any one of the following elements beyond a reasonable doubt: (1) that appellant did not reasonably believe it was necessary to kill in order to protect himself against death or serious bodily harm, (2) that appellant provoked the use of force, or (3) that appellant had a duty to retreat and that retreat was possible with complete safety. 18 Pa.C.S.A. § 505(b)(1). See also Commonwealth v. Carbone, supra 375 Pa. Super. at 275, 544 A.2d at 469; Commonwealth v. Zenyuh, 307 Pa. Super. 253, 257, 453 A.2d 338, 340 (1982). With regard to the duty to retreat, the Crimes Code further provides that a person "is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor . . . ." 18 Pa.C.S.A. § 505(b)(2)(ii)(A).
Here, our review of the record convinces us that appellant's claim that the trial court misapprehended the law on self-defense is meritless. During appellant's closing argument, the court and trial counsel engaged in the following exchange with regard to appellant's duty to retreat:
THE COURT: Why didn't [appellant] just walk back down the cellar?
MR. PHILLIPS [APPELLANT'S COUNSEL]: There is no way out of ...