Com. v. Gay

• Decision Date: 28 April 1980
• Citation: 413 A.2d 675,489 Pa. 17
• Parties: COMMONWEALTH of Pennsylvania v. Wilmer B. GAY, Appellant.
• Court: Pennsylvania Supreme Court

Page 675

413 A.2d 675

489 Pa. 17

COMMONWEALTH of Pennsylvania v. Wilmer B. GAY, Appellant.

Supreme Court of Pennsylvania.

Submitted Dec. 10, 1979.

Decided April 28, 1980.

[489 Pa. 20] Robert B. Mozenter, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Cynthia H. Severinsen, Asst. Dist. Attys., for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN and FLAHERTY, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

Appellant, Wilmer B. Gay, was convicted of murder of the first degree and aggravated assault and battery in the Court of Common Pleas of Philadelphia. He was sentenced to imprisonment for life for murder and three and one-half to seven years for assault and battery, the sentences to run concurrently. We affirmed the judgment of sentence on direct appeal per curiam, without an opinion, 459 Pa. 567, 330 A.2d 843 (1975).

On January 6, 1977, appellant, now represented by counsel other than trial counsel, filed a petition under the Post Conviction Hearing Act, ¹ alleging various instances of ineffectiveness of trial and direct-appeal counsel. On July 20, 1977, a hearing was held on appellant's petition. On August 25, 1977, appellant filed an amended petition, alleging three new and entirely different instances of ineffectiveness on the part of trial and direct-appeal counsel. On April 4, 1978, the court denied appellant's petition and this appeal followed.

According to the Commonwealth's evidence, appellant and one Vaughan Stockton were at a party at the home of his estranged wife, Falivia Gay, on April 24, 1971. An exchange took place in which appellant accused Stockton of being involved with his wife and invited him to leave the party. Appellant, his wife, and Stockton all went outside. Further words were exchanged and then appellant took out a gun that he was carrying, shot and wounded Stockton, and chased his wife down the street. Several shots were heard. Appellant's wife was found dead by the police. Appellant contended that Stockton had the gun, that it went off while he and Stockton were struggling with it, and that Stockton then chased him and his wife.

In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), we held that when counsel is alleged to have been ineffective, the reviewing court is to independently review the record and examine counsel's stewardship in light of available alternatives. Counsel is deemed to have been effective once it can be determined that the course of action followed had a reasonable basis designed to effectuate the client's interests. Counsel is not ineffective for failing to assert a nonexistent right. Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974). The burden is on appellant to establish his right to relief. Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976).

The first alleged instance of ineffectiveness that we will discuss is counsel's failure to appeal the trial court's refusal to charge on self-defense. Appellant would have been acting in self-defense if, not being at fault in provoking the incident, he had done the shootings under a reasonable belief that his action was necessary to protect himself from death or serious bodily harm. Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977). Appellant contended that Stockton was the perpetrator. Since he denied having done the shootings at all, there was no issue of self-defense. Commonwealth v. Young, 460 Pa. 598, 334 A.2d 252 (1975). Appellant was not entitled to a charge thereon.

Appellant next argues that counsel should have objected to an allegedly improper charge on the degrees of homicide. Appellant claims that the court said that a killing is presumed to be second degree murder and also that the court did not give a proper definition of voluntary manslaughter. Reading the court's charge, we find that it was proper. The judge defined murder generally as killing "with malice aforethought. . . ." He defined first degree murder as "willful, deliberate, and premeditated killing." He stated that if the Commonwealth established the requisite malice to prove murder, the murder was presumed to be of the second degree and the burden was on the Commonwealth to raise it to first degree. The judge defined voluntary manslaughter as "the unlawful killing of another without malice (involving) . . . a direct intention to kill and without hardness of heart or cruelty, or recklessness of consequences or a mind regardless of social duty. . . .

"Voluntary manslaughter is willful, but it is necessary that the surrounding circumstances take away every evidence of cruel depravity and wanton cruelty. Therefore, to reduce an intentional wound which results in death, to voluntary manslaughter, there must be either a sufficient cause for provocation or a state of rage or passion without time to cool and placing the accused beyond the control of his reason and suddenly compelling him to do the deed. The word 'passion' in the sense in which it is used here includes such things as anger or terror, provided such a degree of intensity is present as to obscure temporarily the reason of the person affected.

"Passion means any of the emotions of the mind such as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection. . . ."

The charge was correct on the presumption of second rather than first degree murder, Commonwealth v. Laboy, 440 Pa. 579, 270 A.2d 695 (1970), and on the definition of voluntary manslaughter, Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972).

Another allegedly erroneous jury instruction to which counsel failed to object concerned the charge of assault and battery with intent to kill. The court defined the crime as an assault "where one wounds any person or by any means causes any person bodily injury dangerous to life with intention to commit murder." The instruction was correct and in conformity with the statutory definition of the crime. Criminal Code of June 24, 1939 P.L. 872, § 710, 18 P.S. § 4710.

Appellant also alleges an improper instruction on reasonable doubt. Trial counsel did not raise the issue in post-verdict motions. The judge began by saying that the defendant was presumed to be innocent and that the Commonwealth bore a never-shifting burden to prove his guilt beyond a reasonable doubt. He defined a reasonable doubt as one which "would cause a reasonably prudent (person) . . . to pause and to hesitate in a matter of the highest importance to himself or herself . . . (it) must be one that fairly strikes the conscientious mind and clouds the judgment. It is not . . . such a doubt as one might conjure up (to avoid) . . . an unpleasant verdict . . . it is a doubt which is reasonable and which fairly arises out of the evidence." The charge was correct. Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978).

Appellant's last complaint about the jury instructions pertains to the credibility of police officers as witnesses. The court said "When police officers testify . . . you should consider them as fallible human beings, and therefore they may make mistakes. Their testimony, therefore, is not necessarily entitled to any greater or certainly to any lesser weight than the testimony of other witnesses merely because they are policemen and officers of the law." The jury had no right to credit or discredit police officers' testimony because they were police officers. The court charged correctly on that point.

Appellant next alleges that counsel was ineffective in not arguing in post-verdict motions that certain color slides of the decedent's body were...