Commonwealth v. Knight

611 A.2d 1199, 416 Pa. Super. 586, 1992 Pa. Super. LEXIS 1592
CourtSuperior Court of Pennsylvania
DecidedJune 15, 1992
Docket1728
StatusPublished
Cited by7 cases

This text of 611 A.2d 1199 (Commonwealth v. Knight) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Knight, 611 A.2d 1199, 416 Pa. Super. 586, 1992 Pa. Super. LEXIS 1592 (Pa. Ct. App. 1992).

Opinions

CAVANAUGH, Judge:

Appellant raises the following two issues on appeal: (1) whether the lower court erred in failing to define the word “recklessly” when it instructed the jury on the duress defense; and (2) whether trial counsel was ineffective for not objecting to the lower court’s failure to define the word “recklessly” when it instructed the jury as to the duress defense. We agree with both arguments in the respect that we believe that the word “recklessly” should have been defined for the jury when instructed on the duress defense. [589]*589Notwithstanding, we cannot rule in appellant’s favor. The appellant has waived the first issue because trial counsel failed to object to the lower court’s jury instruction. The appellant’s second issue fails because the appellant has not been prejudiced by the inaccurate instruction. We affirm.

From our review of the record, a concise summary of the Commonwealth’s case is as follows. The appellant, Terrence L. Knight, was charged with robbery for an incident which occurred on April 25, 1989. On that date, the appellant entered the Brandywine Bar, located at 737 Bradock Avenue in Allegheny County. He was wearing a red jacket over a blue and white shirt and a bandanna, and his right hand was wrapped in a towel. He initially asked the owner of the bar, Edward Gurne, for money. When Mr. Gurne refused, the appellant walked over to a customer and held the towel up to a customer’s, Mr. Russell Merkel’s, back. Mr. Gurne and Mr. Merkel testified that the appellant claimed to have in it a .22 caliber pistol and that he would shoot Mr. Merkel if Mr. Gurne did not give him money. Mr. Merkel told the appellant to shoot because he was an old man, and Mr. Gurne pulled a .357 revolver from behind the bar and pointed it at the appellant. The appellant said something to the effect that there were men outside, threw down a glass, and ran out the door. He was later found at 910 Talbot lying on his stomach, against the side of a house, covering his face with his arms. Despite the fact that it was a chilly night, the appellant was not wearing anything on his upper body. The police took the appellant back to the Brandywine Bar, where he was identified by Mr. Merkel. Mr. Gurne was not sure because the appellant was not wearing the shirt and jacket, although he would later make an in-court identification. The appellant’s discarded jacket and shirt were found in the locality the next day by the police.

At trial, although his testimony was confused and contradictory, the appellant admitted that he was at the Brandy-wine Bar that night and he went there with the intention of robbing it. However, the appellant claimed that the de[590]*590fense of duress applied in that he was forced to commit the robbery by two drug dealers to whom he owed $60 for a purchase of drugs made earlier that day. According to the appellant, the drug dealers, armed with baseball bats and a knife, found him at his girlfriend’s residence and forced him to go to the Brandywine Bar, and upon threat of death, to rob it. They waited outside the bar to ensure he would follow their command. Once the appellant got into the bar, however, he claimed he had no intention of robbing it and so told Mr. Gume. After attempting to solicit money, he testified he asked that a glass be thrown at him, explaining that he wanted it to look like a robbery for the people outside who were trying to force him to rob the bar. When no one made any motion to throw a glass at him, he grabbed a glass on the bar, threw it down on the floor, and fled. He was captured in due course. He was found guilty of robbery and sentenced following a jury trial to 5 to 10 years imprisonment.

The appellant raises the following two issues on appeal: (1) whether the lower court erred in failing to define the word “recklessly” when it instructed the jury on the duress defense and (2) whether trial counsel was ineffective for not objecting to the lower court’s failure to define the word “recklessly” when it instructed the jury as to the duress defense.1 However, the Commonwealth ar[591]*591gues, and we agree, that the appellant has waived the first issue by failing to object to the jury instruction at trial. The law is settled that a failure to object to a jury instruction normally waives the issue on appeal. Commonwealth v. Hodge, 270 Pa.Super. 232, 240 n. 8, 411 A.2d 503, 507 n. 8 (1979). However, notwithstanding, we have held that this Court may review an alleged error in a jury instruction which was not objected to at trial where it is presented in terms of ineffectiveness of counsel. Commonwealth v. McKnight, 307 Pa.Super. 213, 216, 453 A.2d 1, 2-3 (1982). We thus can and will address the substance of the second issue. Apparently anticipating this ruling, the appellant has couched the same underlying argument also in terms of ineffectiveness of counsel.

The Supreme Court has established a well-recognized test for analyzing ineffectiveness of counsel claims:

We have taken great pains to set forth the criteria that must be established when one attempts to assert the ineffectiveness of counsel. The threshold issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of the ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defen[592]*592dant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). In making assertions of ineffectiveness, we also require that an offer of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This is so because we frown upon considering claims of ineffectiveness of counsel in a vacuum. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989); accord Commonwealth v. Jackson, 390 Pa.Super. 639, 644-5, 569 A.2d 964, 967 (1990), alloc. den. 527 Pa. 623, 592 A.2d 43 (1992). Before proceeding into the appellant’s analysis, we feel our analysis would be strengthened by setting forth the applicable statutory provision at length. The Duress defense, 18 Pa.C.S.A. § 309, states as follows: § 309. Duress

(a) General rule.

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Commonwealth v. Knight
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Bluebook (online)
611 A.2d 1199, 416 Pa. Super. 586, 1992 Pa. Super. LEXIS 1592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-knight-pasuperct-1992.