Commonwealth v. Tabron

465 A.2d 637, 502 Pa. 154, 1983 Pa. LEXIS 675
CourtSupreme Court of Pennsylvania
DecidedSeptember 22, 1983
StatusPublished
Cited by29 cases

This text of 465 A.2d 637 (Commonwealth v. Tabron) is published on Counsel Stack Legal Research, covering Supreme 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. Tabron, 465 A.2d 637, 502 Pa. 154, 1983 Pa. LEXIS 675 (Pa. 1983).

Opinions

[157]*157OPINION

NIX, Justice.

This appeal arises from an incident which occurred on April 2, 1976 at which time Carmen Falanga was killed in the course of a robbery. Appellant was found guilty of murder of the second degree and two counts of robbery. He was sentenced to life imprisonment for the murder conviction and to two concurrent terms of 10-20 years on the robbery charges. Post-verdict motions were denied and no appeal was taken. Appellant filed a petition for relief under the Post Conviction Hearing Act.1 An amended petition was filed and was subsequently denied. This appeal followed.

In this appeal, appellant claims that P.C.H.A. counsel and trial counsel were ineffective in failing to preserve the issue of the trial judge improperly refusing to instruct the jury on the “unreasonable belief”2 aspect of voluntary manslaughter in addition to the “heat of passion” aspect.

The test for evaluating a claim of ineffective assistance of counsel is whether the record supports a conclusion that the particular course chosen by counsel had some reasonable basis designed to effectuate his clients’ interest. In making this assessment, we are not to employ a hindsight evaluation to determine whether there was a reasonable basis for the course of action actually selected. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979); [158]*158Commonwealth v. Treftz, 485 Pa. 297, 401 A.2d 1325 (1979); Commonwealth v. Williams, 485 Pa. 137, 401 A.2d 331 (1979). Commonwealth ex rel. Washington, v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Counsel will not be deemed ineffective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth v. Musi, supra; Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth ex rel. Washington v. Maroney, supra.

Trial counsel testified and the record supports him that after reviewing the case against his client he concluded that the Commonwealth’s case could well support a verdict of first degree murder. The Commonwealth was in fact seeking the penalty of death for the crime charged. Trial counsel explained the situation to appellant and with appellant’s agreement set out from the outset to attempt to reduce the degree of homicide to that of second degree murder.

This robbery-murder occurred as appellant who was armed with á .22 caliber pistol and a companion attempted to rob the victim, an insurance agent. The victim was shot twice and died as a result of the wounds. The Commonwealth had evidence that appellant and his companion had earlier the same day robbed another victim in the same general area. Their modus operandi was for appellant’s companion to choke the victim with a Chinese choker chain while appellant would reach into the pockets of the victim to remove any articles of value.

The Commonwealth’s evidence contained a signed written confession admitting the circumstances of the killing and the fact that appellant had earlier agreed pursuant to a plea bargaining negotiation, which was never consummated, to testify, against his companion, and as part of his testimony to admit his own complicity. In view of the impressiveness of the Commonwealth’s case, trial counsel’s strategy to direct the efforts at reducing the grade of homicide from [159]*159first to second degree was certainly well advised in the best interest of his client. Moreover, it cannot be ignored that trial counsel was successful in accomplishing his intended purpose.

The argument of ineffectiveness instantly raised is predicated upon the existence of certain case law which suggested that a defendant had the right if requested to have the “unreasonable belief” theory of voluntary manslaughter explained to the jury irrespective of whether the evidence supported the finding. Commonwealth v. Schaller, 493 Pa. 426, 426 A.2d 1090 (1981); Commonwealth v. Manning, 477 Pa. 495, 384 A.2d 1197 (1978); Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, cert. denied 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974); but see Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983).

In this case the jury was in fact given voluntary manslaughter as one of the alternative verdicts. However, counsel did not preserve the exception to the trial judge’s refusal of the additional explanation under section 2503(b). The fact that the defendant may have been entitled to such a charge under the law at that time does not in this case suggest a dereliction on the part of trial counsel. It is obvious that such a charge was totally unrelated to the theory of the defense and therefore pursuing that particular objection would have in no way furthered the objectives sought to be achieved by the defense.

It is clear from the record this assertion of ineffectiveness is totally without merit and does not warrant the relief requested.

Next, appellant claims that he was deprived of a fair trial because of improper remarks contained in the prosecutor’s closing address to the jury and that trial counsel was ineffective in failing to preserve this claim. This issue was raised in appellant’s P.C.H.A. petition. The prosecutor addressed the jury as follows:

Law and order, ladies and gentlemen, is only as strong as that chain, it is only as strong as its weakest link. I, [160]*160the District Attorney, have laid all the evidence in front of you. The police have gone out and investigated this case, and they have come up with this evidence. But you, ladies and gentlemen, are the last link in this chain, because you will decide what this Defendant is guilty of and it is only your decision that is going to be heard out in the streets in Philadelphia. You are the people, and you are the ones that determine if this is going to keep going on. All of you live in different neighborhoods in different parts of the City.
I am sure you remember back, years ago, when in every neighborhood you could find a corner grocery store, a corner drugstore. Today, you can’t and you all know why.

At this point, trial counsel objected and was overruled.

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Commonwealth v. Tabron
465 A.2d 637 (Supreme Court of Pennsylvania, 1983)

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Bluebook (online)
465 A.2d 637, 502 Pa. 154, 1983 Pa. LEXIS 675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-tabron-pa-1983.