Com. v. Sullivan

• Citation: 299 A.2d 608,450 Pa. 273
• Parties: COMMONWEALTH of Pennsylvania v. John C. SULLIVAN, Appellant.
• Decision Date: 19 January 1973
• Court: Pennsylvania Supreme Court

Page 608

299 A.2d 608

450 Pa. 273

COMMONWEALTH of Pennsylvania v. John C. SULLIVAN, Appellant.

Supreme Court of Pennsylvania.

Jan. 19, 1973.

David M. Kozloff, Rhoda, Stoudt & Bradley, Reading, for appellant

Robert L. Van Hoove, Dist. Atty., Grant E. Wesner, Deputy Dist. Atty., Reading, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Appellant, John C. Sullivan, was tried by a jury in Berks County and convicted of murder in the second degree. After denial of motions for a new trial and in arrest of judgment appellant filed this appeal. Appellant alleges eight trial errors as a basis for relief. On this record we find four issues to be totally without merit and shall proceed to discuss the remaining four asserted errors. ¹

Appellant's principal contention is that the trial court erred in defining voluntary manslaughter to the jury. In its charge the court instructed that voluntary manslaughter consists of an unlawful killing 'without a direct intent to kill.' ² In Commonwealth v. Jennings, 442 Pa. 18, 23, 274 A.2d 767, 769 (1971), this Court specifically held that this precise charge ³ was incorrect because voluntary manslaughter Could be accompanied by a direct intent to kill. However, in Jennings, as here, defense counsel neither objected to nor requested correction of the erroneous charge before the jury retired to deliberate. In Jennings, we held that '. . . appellant's failure to take a specific exception to this portion of the charge, as required by Pa.R.Crim.P. 1119(b), forecloses our consideration of this issue on this appeal.' Commonwealth v. Jennings, supra at 24, 274 A.2d at 770. ⁴ Similarly appellant's failure, here, to object to the charge when given is fatal to his assertion of this claim on appeal.

Moreover, appellant cannot now successfully challenge the claimed error in the charge because the record discloses that as a matter of trial strategy appellant elected to seek an acquittal on the ground of self-defense and decided to forego consideration by the jury of a verdict of guilty of voluntary manslaughter. See Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972). It is well settled that whether to object to the trial court's charge, to request clarification of the charge, or to request additional points for charge is one of the tactical decisions 'within the exclusive province of counsel.' McGrogan, supra at 586, 297 A.2d at 457; see United States ex rel. Green v. Rundle, 452 F.2d 232 (3d Cir. 1971); United States v. McKenzie, 409 F.2d 983 (2d Cir. 1969). In United States ex rel. Green v. Rundle, supra, 452 F.2d at 237, the Third Circuit held that counsel's failure to object or to request a particular instruction was a 'deliberate by-pass' necessarily imputed to the appellant. Here defense counsel's failure to object to an erroneous instruction on voluntary manslaughter presents the identical situation.

Appellant may be eligible for relief if it is determined that counsel's conduct of the trial lacked the quality of representation set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). We said in Washington, supra at 604--605, 235 A.2d at 352--353:

'that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had Some reasonable basis designed to effectuate his client's interests. The test is Not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis.'

If a reasonable basis for counsel's trial strategy decision exists, that decision is imputed to the appellant. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).

Applying the 'trial strategy-reasonable basis' tests of Washington and McGrogan here we find the record discloses that counsel's trial strategy was to seek an acquittal on the basis of self-defense. All of defendant's evidence plus the testimony he elicited on cross-examination was consistent with the asserted claim for acquittal on self-defense. Moreover, in requesting points for charge, defense counsel submitted 12 points, all relating to self-defense. It is evident from this record that counsel's defense strategy was fashioned and patterned for acquittal based on self-defense. This was, indeed, the defense blueprint for trial and submission of its position to the jury. ⁵ Nowhere does the record reveal any attempt or plan to have the jury return an alternative verdict of voluntary manslaughter. Instead the defense trial record is a studied effort to avoid any deviation or compromise from its sole and primary strategic objective of obtaining an acquittal. The defense neither requested a manslaughter charge nor objected to the one the court gave--desiring not to have the manslaughter verdict presented or emphasized to the jury. It was the defense preference not to indicate to the court or the jury any defense interest in a manslaughter charge or verdict.

Viewing this defense strategy as it developed during the trial and prior to the verdict, it is clear that here, just as in McGrogan, 'counsel sought to limit the jury's options to either finding first or second degree murder or outright acquittal.' McGrogan, supra at 590, 297 A.2d at 459. In McGrogan, we held that this identical trial strategy of limiting the jury's options was not an unreasonable one. ⁶ Similarly, here the record discloses a reasonable basis for counsel's basis for counsel's trial decision, particularly in light of his objective of acquittal. Moreover, counsel's challenge to the manslaughter charge was first made in post trial motions only after the verdict of second degree murder was returned and the possibility of an outright acquittal was foreclosed. We recently stressed in McGrogan,supra at 591, 297 A.2d at 460, that '. . . as the Supreme Court appropriately noted in Henry, when for some reason counsel's deliberate trial strategy 'backfires', the failure of the strategy cannot form the basis for relief upon review. Id. (379 U.S.) at 451, 85 S.Ct. at 569; . . .'

Appellant's second contention is that the trial court erred in permitting the Commonwealth to cross examine him over his objection concerning certain events surrounding the stabbing. First, appellant contends that eliciting on cross examination that appellant had supplied the decedent with wine prior to the stabbing was unduly prejudicial and irrelevant. However, any error in admitting such testimony was corrected in the court's charge which instructed that furnishing wine to decedent did not constitute provocation of decedent's assault upon appellant.

Secondly, appellant argues that he did not place his character in issue. Therefore evidence elicited by the Commonwealth showing that appellant did not pay any rent to the owner of the dwelling where he lived and where the stabbing occurred was an impermissible attack on his character, because it implied he was a 'freeloader.' However, such cross examination was not an attack on appellant's character or reputation. Appellant's theory of the case was self-defense. Thus, in order to show he had no duty to retreat when attacked by decedent, appellant sought to establish that he was in his own dwelling. The Commonwealth attempted to rebut this element of self-defense by proving that appellant paid no rent and thus was not in his own dwelling as he claimed at the time of the stabbing.

Appellant's third contention is that an inculpatory statement made prior to being advised of his Miranda rights should have been excluded from evidence. Appellant was confronted in his bedroom by three police officers and informed he was under arrest. Before any of the officers said anything further appellant stated, 'I was going to give myself up in the morning anyhow.' This statement appellant claims, should not have been admitted at trial over his objection. However, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), does not preclude the admission of such a volunteered statement. 'Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.' Miranda, supra at 478, 86 S.Ct. at 1630. Miranda excludes only inculpatory or exculpatory statements resulting from 'questioning' or 'custodial interrogation.' Here there was neither questioning, interrogation, nor any attempt to obtain a statement from appellant prior to his volunteered incriminating remark. Such volunteered statements, although incriminating, are nevertheless admissible. See Miranda, supra; Commonwealth v. Hamilton, 445 Pa. 292, 285 A.2d 172 (1971); Commonwealth v. Simala, 434 Pa. 219, 252 A.2d 575 (1969); Commonwealth v. Moody, 429 Pa. 39, 239 A.2d 409 (1968); Commonwealth v. Eperjesi, 423 Pa. 455, 224 A.2d 216 (1966). In Simala, supra, 434 Pa. at 226, 252 A.2d at 578--579, we specifically said that '(t)he requirement of 'interrogation' is designed to permit the use by the prosecution of a confession that is given by an accused Without any prompting, before warning can be given.' This is just such a situation.

Appellant finally contends that certain prejudicial photographs were admitted into evidence. These black and white photographs, depicted the room where the stabbing occurred, showing large amounts of blood on the furniture. Appellant argues that admission of the...