Com. v. McClain

• Decision Date: 15 March 1991
• Docket Number: No. 1823,1823
• Parties: COMMONWEALTH of Pennsylvania v. Martin McCLAIN, Appellant. Pitts. 1989.
• Court: Pennsylvania Superior Court

Page 798

587 A.2d 798

402 Pa.Super. 636

COMMONWEALTH of Pennsylvania v. Martin McCLAIN, Appellant.

No. 1823 Pitts. 1989.

Superior Court of Pennsylvania.

Argued Jan. 10, 1991.

Filed March 15, 1991.

Robert A. Crisanti, Pittsburgh, for appellant.

Kevin F. McCarthy, Asst. Dist. Atty., Beaver, for Com.

Before TAMILIA, POPOVICH and JOHNSON, JJ.

JOHNSON, Judge:

This is an appeal from the judgment of sentence entered against appellant Martin McClain on November 6, 1989. We affirm.

On March 14, 1985, appellant Martin McClain was residing with Debra White and her two minor children. At 7:00 AM, White left for work, but was stopped outside her apartment by her ex-boyfriend, Eric Harris. Harris forced Debra White back into her apartment building, threatened to rape her and demanded that she give him the keys to her apartment. When White refused to provide Harris with the keys to her apartment, he repeatedly pounded her head against the wall. McClain observed the entire episode from the "peephole" of his apartment. He then armed himself with a shotgun and opened the door of his apartment. Holding the shotgun at his side, McClain ordered Harris to leave the building. Harris responded that McClain would have to shoot him first, and proceeded to take two steps towards McClain. McClain then shot Harris in the chest. Harris later died from the wound.

McClain was arrested and charged with one count of Criminal Homicide, 18 Pa.C.S.A. § 2501(a). At trial, McClain did not contest that he fired the fatal shot. McClain testified that the shooting was in self-defense. The Commonwealth's evidence indicated that no weapon was found on the body of the deceased, nor was a weapon located at the scene of the incident. Following trial, the jury found McClain guilty of Voluntary Manslaughter, 18 Pa.C.S. § 2503.

A Motion for New Trial and/or In Arrest of Judgment was argued and denied. McClain was sentenced to a term of imprisonment of not less than five (5) or more than ten (10) years. McClain raises the following issues on appeal:

I. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION OF VOLUNTARY MANSLAUGHTER AND THE COMMONWEALTH FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT McCLAIN WAS NOT ACTING IN SELF DEFENSE.

II. COUNSEL WAS INEFFECTIVE DUE TO HIS FAILURE TO PROVIDE OR REQUEST A JURY INSTRUCTION WHICH WOULD HAVE ENABLED THE JURY TO CONSIDER THE VICTIM'S PRIOR ACTS OF VIOLENCE AND "VIOLENT PROPENSITIES."

A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AN INSTRUCTION CONCERNING THE RELEVANCE OF THE DECEASED'S PRIOR ACTS OF VIOLENCE AND HIS "QUARRELSOME AND VIOLENT CHARACTER" IN DETERMINING THE REASONABLENESS OF McCLAIN'S FEAR OF DECEDENT.

B. COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY INSTRUCTION CONCERNING THE RELEVANCE OF THE DECEDENT'S PRIOR ACTS OF VIOLENCE AND "VIOLENT PROPENSITIES" TO SUPPORT THE PROPOSITION THAT HARRIS WAS THE AGGRESSOR.

III. COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE ERRONEOUS AND UNCONSTITUTIONAL CHARGE ON SELF-DEFENSE, WHICH EFFECTIVELY SHIFTED THE BURDEN OF PROOF TO McCLAIN BY CHARGING THAT DEFENDANT MUST MEET CERTAIN "REQUIREMENTS BEFORE HIS SELF-DEFENSE IS JUSTIFIED."

IV. COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE COURT'S "DUTY TO RETREAT" INSTRUCTIONS BECAUSE McCLAIN HAD NO DUTY TO RETREAT IN HIS OWN HOME AND NO EVIDENCE EXISTED THAT HE WAS THE INITIAL AGGRESSOR.

The well established standard for reviewing a claim of sufficiency was recently stated by our 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 must 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. Hunter, 381 Pa.Super. 606, 610, 554 A.2d 550, 551 (1989), citing Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986).

At issue one, McClain argues that the evidence was insufficient to support the conviction of Voluntary Manslaughter. We disagree. Voluntary Manslaughter is defined at 18 Pa.C.S.A. § 2503, which provides in part:

(a) General rule.--A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:

(1) the individual killed; or (2) another whom the actor endeavors to kill, but he negligently or accidently causes the death of the individual killed.

(b) Unreasonable belief killing justifiable.--A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.

In order to prove Voluntary Manslaughter beyond a reasonable doubt, the Commonwealth must prove every element of either § 2503(a) or § 2503(b) beyond a reasonable doubt. A conviction under § 2503(a) requires "a sudden and intense passion resulting from serious provocation." See Commonwealth v. McFadden, 384 Pa.Super. 444, 559 A.2d 58 (1989). A conviction under § 2503(b) requires that 1) the accused intentionally or knowingly killed an individual; 2) with the unreasonable belief that the killing was lawfully justified. Commonwealth v. Nau, 473 Pa. 1, 373 A.2d 449 (1977).

Further, where an accused raises the defense of self-defense under 18 Pa.C.S.A. § 505, the burden is on the Commonwealth to prove beyond a reasonable doubt that the homicide was not a justifiable act of self-defense. Commonwealth v. Burns, 490 Pa. 352, 416 A.2d 506 (1980). The Commonwealth sustains its burden of disproving self defense if it establishes at least one of the following: 1) the accused did not reasonably believe that he was in danger of death or serious bodily injury; or 2) the accused provoked the use of force; or 3) the accused had a duty to retreat and the retreat was possible with complete safety. Commonwealth v. Stonehouse, 521 Pa. 41, 59, 555 A.2d 772, 781 (1989). The right to use deadly force as a justifiable act of self-defense is set forth in 18 Pa.C.S.A. § 505(b)(2) as follows:

(b) Limitations on justifying necessity for use of force.

(2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury ...; nor is it justifiable if:

(i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself ...; or

(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating....

Further, "believes" or "belief" is defined in 18 Pa.C.S.A. § 501 as follows:

"Believes" or "Belief." Means "reasonably believes" or "reasonable belief."

We now turn to the facts of the instant case to determine whether the evidence, viewed in the light most favorable to the Commonwealth, supports the jury's conviction of Voluntary Manslaughter under either § 2503(a) or § 2503(b). McClain's neighbor, a prosecution witness, testified that she saw McClain open the door of his apartment, lift the gun, and say "You're dead, sucker," before he fired at Harris. Further, an expert from the Allegheny County Coroner's Office testified that the cause of Harris' death was a shotgun wound to the chest. This expert also testified that the shotgun blast perforated Harris' ribs, as well as his lung and his heart. Not only did McClain testify that he aimed the weapon at Harris, he testified that Harris "was very close" when he discharged the weapon. Finally, McClain, himself, testified that he was aware of the damage a shotgun shell would cause. We conclude that the jury had sufficient evidence from which to conclude that McClain intentionally killed Harris, the first element of § 2503(b).

In addition, Debra White, an eyewitness, testified on direct examination that she did not see Harris produce a weapon on March 14, 1985. No weapons were found at the scene of the incident. Nor were any weapons found on the body of Harris. McClain testified that he believed that "[Harris] possibly could have had a gun," and that he was "in fear for [his] own life as well as Debra's." (Emphasis ours). We find this evidence sufficient to support a finding that McClain's belief was unreasonable; the second element of § 2503(b). Therefore, we conclude, that there was sufficient evidence to support a finding of Voluntary Manslaughter under 18 Pa.C.S.A. § 2503(b).

We also find, in light of our thorough review of the record, that the evidence was sufficient to support the jury's finding that McClain did not kill Harris in self-defense. As we stated previously, in order to meet its burden, the Commonwealth must establish one of the elements set forth in Commonwealth v. Stonehouse, supra. We are satisfied that there was sufficient evidence to find that McClain did not reasonably believe that he was in danger of death or serious bodily injury when he shot Harris. Therefore, we find that McClain's first issue is without merit.

Next, McClain alleges three separate instances of trial counsel's ineffectiveness. It is settled that, in order to prevail on a claim of ineffectiveness, the appellant must show that the underlying claim is of arguable merit. Commonwealth v. Tressler, --- Pa. ---, 584 A.2d 930 (No. 40 M.D. Appeal Docket 1989, filed December 31, 1990). If a claim is devoid of merit, our inquiry ceases, for counsel will not be deemed ineffective for failure to pursue a meritless claim. Commonwealth v. Nelson, 514...