Commonwealth v. Upshur

410 A.2d 810, 488 Pa. 27, 1980 Pa. LEXIS 467

• Court: Supreme Court of Pennsylvania
• Decided: February 5, 1980
• Docket: 342 and 445
• Status: Published

Opinions

OPINION

ROBERTS, Justice.

On April 8, 1975, appellant Ronald Upshur was convicted by a jury of murder of the first degree, robbery, and conspiracy. The court sentenced him to consecutive prison terms of life and twenty-five to fifty years. On direct appeal,¹ appellant seeks relief on the ground, inter alia, that the trial court improperly refused trial counsel’s request for an “accomplice” charge, and that trial counsel’s subsequent failure to challenge this ruling in written post-verdict motions constitutes ineffective assistance of counsel. We agree, vacate the judgments of sentence, and grant a new trial.

I

On April 15, 1975 trial counsel filed timely post-verdict motions averring in boiler plate fashion that the verdicts were unsupported by the evidence and contrary to law. At post-verdict argument, however, trial counsel briefed and argued numerous other issues. The court en banc held that the issues raised by written post-verdict motions lacked merit, and that the other issues had been waived because they were not filed in written post-verdict motions pursuant to Pa.R.Crim.P. 1123.² See Commonwealth v. Carrillo, 483 Pa. 215, 395 A.2d 570 (1978) (post-verdict court properly exercises discretion by refusing to address issues not presented in written post-verdict motions).

Appellant, through new counsel, now contends that trial counsel was ineffective for failing to include these other issues in post-verdict motions, and that this Court should therefore consider these other issues.³ We must resolve the ineffectiveness claim by determining whether “the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967); see generally Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

Here trial counsel, after filing boiler plate motions, briefed and argued before the post-verdict court issues not contained in the written post-verdict motions. It must be assumed that, in counsel’s view, judicial consideration of these issues would advance his client’s interests. In such circumstances, there can be no reasonable basis for the failure to raise issues in accordance with Pa.R.Crim.P. 1123. The interests of his client are in no way advanced by raising issues in an impermissible manner. Cf. Commonwealth v. Von Smith, 486 Pa. 564, 406 A.2d 1034 (1979) (untimely motion for severance cannot be predicated on any reasonable trial strategy). Since appellant’s trial counsel failed to include in post-verdict motions the issues he thereafter wished to be considered by the court, appellant was denied effective representation. Accordingly, we consider the issues ineffective trial counsel failed to preserve properly.

II

Of the issues now properly before this Court, we need address only one. Malcolm McLaughlin testified for the Commonwealth that he heard appellant on two occasions admit to robbing and killing Alvin Smultkis. On the basis of other evidence adduced at trial, appellant’s trial counsel contended that McLaughlin was an “accomplice,” and requested the court to instruct the jury on the weight to be accorded “accomplice” testimony. The court refused this charge. Appellant here urges that the court’s refusal constitutes reversible error. We agree.

Testimony of a witness who is an accomplice in the crime charged and testifies for the prosecution “is to be carefully scrutinized and accepted with caution.” Commonwealth v. Sisak, 436 Pa. 262, 265, 259 A.2d 428, 430 (1969); see Commonwealth v. Mouzon, 456 Pa. 230, 318 A.2d 703 (1974); Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973); see generally 3A Wigmore on Evidence § 967 (Chadbourn rev.); Pennsylvania Standard Jury Instructions — Criminal §§ 4.01-.03 (May 15, 1972 Draft). The rationale of this view is that “[s]uch a witness, out of a reasonable expectation of leniency, has an interest in inculpating others.” Commonwealth v. Russell, 477 Pa. 147, 153, 383 A.2d 866, 868 (1978); see generally Cool v. United States, 409 U.S. 100, 103, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972); Commonwealth v. Turner, 367 Pa. 403, 409-410, 80 A.2d 708, 712 (1951). An accomplice charge is necessitated not only when the evidence requires an inference that the witness was an accomplice, but also when it permits that inference. Commonwealth v. Sisak, supra, 436 Pa. at 268, 259 A.2d at 431.

Whether evidence in this case permits an inference that McLaughlin was an accomplice is controlled by our decision in Commonwealth v. Thomas, 479 Pa. 34, 387 A.2d 820 (1978). Thomas arose from the same criminal incident as this case, and presented, as here, the issue whether Curtis Thomas, appellant Upshur’s codefendant, was entitled to an accomplice charge. The evidence at Thomas’s trial indicated that Thomas and two Commonwealth witnesses, McLaughlin and Smith, were members of Black Brothers Incorporated. This organization operated for the purpose of conducting criminal activity, and owned a gun available to its members for use in obtaining illegal “profits” to be shared by all. Nonetheless, the trial court, as here, refused a requested accomplice instruction. This Court reversed. We held such “evidence . . . permits the inference that the witnesses McLaughlin and Smith were participants in a conspiracy to commit robberies and other illegal acts in order to financially support ...” Black Brothers Incorporated, id., 479 Pa. , 387 A.2d at 822, and thus concluded that Thomas was entitled to an accomplice charge.

The Commonwealth fails to persuade us that on this issue the facts in Thomas are distinguishable from those in the instant case. The evidence adduced at appellant Upshur’s trial demonstrates that McLaughlin and appellant were members of Black Brothers Incorporated, and that shortly after the robbery and killing of Smultkis appellant in disguise entered a meeting of Black Brothers Incorporated at which McLaughlin was present and announced his crime. Later that day appellant entrusted to McLaughlin the weapon he used in this criminal incident — a weapon owned by Black Brothers Incorporated.⁴

As in Thomas, the facts here permit an inference that McLaughlin, as a member of Black Brothers Incorporated, participated in a conspiracy with appellant to rob and kill Alvin Smultkis. Here, as in Thomas, we hold that the trial court erroneously refused trial counsel’s request for an accomplice charge.

Judgments of sentence vacated and new trial granted.

MANDERINO, J., did not participate in the decision of this case. NIX, J., joins this opinion and files a concurring opinion. O’BRIEN, J., concurs in the result. LARSEN, J., files a dissenting opinion, in which FLAH-ERTY, J., joins.

1 . Appellant took this direct appeal from his conviction for felonious homicide under the Appellate Court Jurisdiction Act, July 31, 1970, P.L. 673, art. II § 202(1), formerly 17 P.S. § 211.202(1), replaced by 42 Pa.C.S.A. § 722. The Superior Court transferred appellant’s appeal of the conspiracy and robbery convictions to this Court under the Appellate Court Jurisdiction Act, July 31, 1970, P.L. 673, art. V § 503, formerly 17 P.S. § 211.503, replaced by 42 Pa.C.S.A. § 705.

2 . Pa.R.Crim.P. 1123 (effective July 23, 1973) provides in relevant part:

“[0]nly those issues raised and the grounds relied upon in the [post-verdict] motions may be argued.”

3 . Appellant also appeals the post-verdict court’s finding that the verdict is supported by the evidence. This claim is meritless.

4 . In addition to this evidence, trial counsel by cross-examination of McLaughlin sought to establish the nature of Black Brothers Incorporated’s activities, as was done in Thomas. Upon Commonwealth objections, however, the trial court refused to permit this line of questioning.