Appeal from the Post Conviction Relief Act of September 26, 1988, in the Court of Common Pleas of Philadelphia County, Criminal Division, at NO. 346 April 1984.
Norris E. Gelman, Philadelphia, for appellant.
Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Del Sole, Beck and Montgomery, JJ.
[ 388 Pa. Super. Page 487]
This appeal involves the question of the validity of a progression charge in a homicide case; i.e., whether the trial court may instruct the jury not to consider whether the defendant is guilty of voluntary manslaughter until after it has considered whether the defendant is not guilty of murder. Appellant contends that his counsel was ineffective for failing to object to the progression charge. We find that the the court's instruction was proper and that counsel provided effective representation.
On August 11, 1975, Albert Dixon, an Exxon employee, was fatally wounded during an attempted robbery of an Exxon service station. The crime remained unsolved until 1984 when the police received information implicating Andre Hart and Barry Patterson. Hart was charged with murder, robbery, and criminal conspiracy and tried before a jury in the Philadelphia Court of Common Pleas. At trial, Patterson testified for the Commonwealth that he and Hart had conspired to rob Dixon. Patterson further testified that Hart had approached Dixon while armed with a gun, and that Hart had panicked and fired his weapon at Dixon. Defense counsel presented no evidence, but instead focused on impeaching Patterson's testimony.
At the close of the trial, the court instructed the jury on the law of homicide.*fn1 The court directed the jury to consider the various forms of homicide in what the Commonwealth describes as a "logical progression sequence". This progression charge was as follows:
[ 388 Pa. Super. Page 488]
You also will take with you a verdict sheet. Now the verdict sheet is self-explanatory. It has "Verdict Sheet" up here. It has my name, the names of the attorneys and the Commonwealth versus Andre Hart. But you will notice here it's listed murder and besides [sic] murder is first degree, second degree and third degree. And below that is voluntary manslaughter and the charges of robbery and criminal conspiracy.
Now it's up to you to decide what order you want to proceed on. When you're in that jury room you decide things for yourself. However, if you find the Defendant guilty of murder of the first degree, it will not then be necessary to consider second degree, third degree or voluntary manslaughter.
If you find the Defendant guilty . . . of first degree murder, the chairperson will then write under verdict guilty or not guilty. If you find him not guilty of all, either murder or manslaughter, you will then write not guilty under . . . all of the homicide charges. If you find him guilty of first degree murder, it will not be necessary to consider any of the other charges.
If you find him not guilty of first degree but find him guilty of second degree, then the chairperson should write beside that charge guilty. It will not be necessary to consider third degree and manslaughter.
If you find him not guilty of first, second, and third degree, then you will consider voluntary manslaughter and put beside the verdict whatever the verdict is.
You will only consider voluntary manslaughter if you are satisfied the Commonwealth has not proven the Defendant guilty of any degrees of murder.
N.T. at 3.44-3.46 (emphasis added).
Trial counsel did not object to this instruction. After deliberating, the jury found Hart guilty of murder in the third degree. The jury also found Hart guilty of robbery and criminal conspiracy. Counsel successfully argued in post-trial motions that the robbery and criminal conspiracy charges were barred by the statute of limitations. On
[ 388 Pa. Super. Page 489]
March 25, 1985, the court arrested judgment on the robbery and criminal conspiracy charges, and sentenced Hart for the murder charge to a term of ten to twenty years imprisonment.
Hart obtained new counsel and filed a timely notice of appeal from his judgment of sentence for murder. On appeal, counsel did not address the trial court's progression charge. Appellate counsel instead argued that trial counsel was ineffective for failing to request a point for charge on the distinction between accomplice liability for murder and liability as an accessory after ...