Commonwealth v. Ort

ROWLEY, Judge:

This is an appeal by John Henry Ort from an order denying his first Post Conviction Relief Act Petition, 42 Pa.C.S. § 9541 et seq., without a hearing. In 1986, appellant was sentenced to life imprisonment following his conviction by a jury of second degree murder for the death of a person killed in an arson-connected fire of a building. The Superior Court affirmed appellant’s conviction in a direct appeal, and the Supreme Court denied his petition for allowance of appeal. In April, 1989, appellant filed the instant pro-se PCRA petition. New counsel was appointed to represent him, and an amended petition was filed. The petition was denied without a hearing, and this appeal followed.

On appeal, appellant raises four arguments: 1) was trial counsel ineffective for failing to request a voluntary manslaughter jury instruction; 2) was trial counsel ineffective for failing to request a jury instruction on third degree murder; 3) was trial counsel ineffective for failing to object to the jury instruction on the issue of the voluntariness of appellant’s confession; and 4) was trial counsel ineffective for failing to object to the cross examination of appellant regarding prior fires. Having thoroughly reviewed the record and the arguments of counsel, we affirm.

To be eligible for relief under the PCRA on the basis that counsel provided ineffective assistance, a petitioner must establish that his conviction resulted from “ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). However, in order to establish in the first instance that counsel was ineffective, the petitioner must demonstrate that the underlying issue has arguable merit, and that counsel had no reasonable basis for failure to make the objections which petitioner now claims should have been made. In addition, the petitioner must establish that he was prejudiced as a result of the ineffective assistance of counsel. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Appellant has failed to establish that there is merit to any of his underlying claims of ineffectiveness of counsel.

Appellant’s first and second arguments are similar: trial counsel was ineffective for failing to request a jury instruction on third degree murder and voluntary manslaughter, which failure resulted in depriving the jury of the opportunity to exercise their “mercy dispensing” powers. While at one time the undisputed rule in Pennsylvania was that upon request, a defendant charged with homicide is entitled to jury instructions on all the elements of the lesser degrees of homicide regardless of whether there was evidence to support a verdict on a lesser degree of homicide, see e.g., Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974), the Supreme Court itself has made inroads on the rule and questioned its continuing validity. Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983) (“unreasonable belief” voluntary manslaughter instruction must be given only where requested and only where the evidence would reasonably support such a conclusion); Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984) (“there is little or no vitality left to this practice ... ”).

We find it unnecessary to address the question of whether the rule in fact has ceased to exist in Pennsylvania because of the procedural posture of the instant case. In at least those cases where the question of instructing the jury on lesser degrees of homicide has been raised in the guise of a claim of ineffective assistance of counsel, no relief has been granted in the absence of some evidence existing in the record to support the lesser degree of homicide. Commonwealth v. Carter, supra; Commonwealth v. Ulatoski, 267 Pa.Super. 521, 407 A.2d 32 (1979).

In Carter, the appellant filed a direct appeal from a judgment of sentence for third degree murder. He argued that his trial counsel was ineffective for failing to object when the trial court instructed the jury only on “heat of passion” voluntary manslaughter [18 Pa.C.S. § 2503(a)], and not on “unreasonable belief” voluntary manslaughter [18 Pa.C.S. § 2503(b) ]. The appellant argued that regardless of the nature of the evidence actually presented, a defendant charged with murder “has an unconditional right on request to an instruction on the complete statutory definition of the offense of voluntary manslaughter.” Carter, id., 502 Pa. at 439, 466 A.2d at 1330, quoting Commonwealth v. Manning, 477 Pa. 495, 499, 384 A.2d 1197, 1199 (1978). The court noted that in Manning, it had extended the ruling in Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), cert. denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974). However, in Carter, the Court stated “by viewing Jones as mandating a like result in Manning, we overlooked not only the change in our statutory law but also the salutary rule that ‘a trial court should not instruct the jury on legal principles which have no application to the facts presented at trial. ’ ... [T]he vitality of the rationale that an instruction on the lesser-included offense must always be given regardless of the evidence in support of the offense is disputable.” Carter, id., 502 Pa. at 440, 442, 466 A.2d at 1332 (emphasis added).

In Carter, the Commonwealth sought to prove a premeditated killing. Appellant’s defense was that the firearm accidentally discharged during a struggle between himself, his girlfriend/victim, and his girlfriend’s brother, who was the victim who died. Because this defense had no rational relationship to the imperfect self-defense theory of § 2503(b) which appellant thought his counsel should have requested the court to instruct the jury with, appellant was not entitled to the instruction, and his counsel was not ineffective for not requesting it.

In Ulatoski, the defendant appealed from an order denying him post-conviction relief following his conviction of third degree murder. Appellant argued that his counsel was ineffective for not requesting the court to instruct the jury on voluntary and involuntary manslaughter. Following a hearing on the ineffective assistance of counsel at which trial counsel testified, the court concluded that trial counsel believed that the jury would acquit his client if he limited the jury’s options to third degree murder or acquittal. Based on this conclusion, the court found that counsel had a reasonable basis for his decision not to seek the additional instructions for the jury, and counsel was therefore not ineffective.

In the instant case, the record reveals that counsel knowingly and deliberately did not seek a jury instruction on either third degree murder or voluntary manslaughter, and there was no evidence which would support a conviction of either of these lesser degrees of homicide. Prior to trial, the Commonwealth advised the court that it was not proceeding on a first degree murder theory. In response, defense counsel stated, “I would only ask that the record reflect my request that Mr. Kleinfelter’s (the prosecutor’s) exclusion of the first degree murder theory not automatically exclude any other homicide theory that might arise. I have trouble seeing any but if any should I’d still like to have those brought before the jury.” N.T. pp. 28-29. Near the conclusion of the trial and before the jury was charged, the court asked counsel what degrees of murder he wanted the jury to be instructed with. Counsel responded by saying second degree murder and involuntary manslaughter. The court then questioned, “You’re not requesting a charge on third degree murder?” and counsel responded, “No. I don’t see where third degree or voluntary manslaughter can be at all appropriate.” N.T. p. 203.

Appellant’s defense in this case was that he did not set the fire which caused the homicide. There was no evidence of third degree murder: either appellant set the fire, and therefore was guilty of second degree murder, or he did not set the fire and was not guilty of any homicide. Trial counsel’s statement, following the presentation of evidence in this case, that a third degree murder instruction was inappropriate, was reasonable in light of the defense which appellant chose to present.

Similarly, since appellant’s defense was that he did not set the fire, a claim that the killing was only voluntary manslaughter, either because it occurred in the “heat of passion” or because it was an “unreasonable belief” killing, would have been entirely inconsistent with the position taken by appellant at trial. No evidence was presented to establish that the fire was set by appellant while he labored under the unreasonable belief that the killing was justified, and no evidence was presented that the fire was set in the heat of passion.

Since the record shows that counsel deliberately chose not to seek a third degree murder instruction and a voluntary manslaughter instruction, and since the record evidences the reasonableness of that tactical decision, the instant case is materially indistinguishable from Carter, where there was no evidence to support the lesser charge of homicide, and therefore counsel was not ineffective for not requesting it, or Ulatoski, where counsel tactically calculated that a charge on the lesser degree of homicide would have hurt his client. There being no evidence in this case to warrant the third degree murder or voluntary manslaughter instructions, and counsel having deliberately made a tactical decision not to seek those instructions, we find that there is no merit to the claim that counsel was ineffective for failing to request the instructions on third degree murder and voluntary manslaughter.

Appellant’s third argument is that counsel was ineffective for failing to object to the court’s inaccurate jury instruction regarding the voluntariness of appellant’s confession. This argument is premised on the theory that the trial court failed to instruct the jury that the Commonwealth had the burden of proving by a preponderance of the evidence that the confession was voluntary. Since the trial court adequately instructed the jury, there is no merit to this underlying claim, and counsel was not ineffective for failing to object to the court’s charge.

A trial court’s charge to the jury will be upheld so long as it adequately and accurately reflects the law and guides the jury in its deliberation. Commonwealth v. Person, 345 Pa.Super. 341, 498 A.2d 432 (1985). The trial court instructed the jury in this case as follows:

Before you may consider the statement as evidence against the Defendant you must find two things. You must find first that a crime was in fact committed; and secondly, that it was voluntary.

Secondly, you may not consider the statement as evidence against the Defendant unless you find that he made the statement voluntarily. The word voluntarily has a special meaning in the law which I’ll now talk to you about. The basic test of voluntariness is this. To be voluntary a Defendant’s statement must be the product of a rational mind and a free will. The Defendant must have a mind capable of reasoning about whether to make a statement or say nothing and he must be allowed to use his mind in that way.

This does not mean that a statement is involuntary merely because the Defendant made a hasty or a poor choice and might have been wiser to say nothing. Nor does it mean that a statement is involuntary merely because it was made in response to searching questions. It does mean, however, that if a Defendant’s mind and will were confused or burdened by promises of advantage, by threats, by physical or psychological abuse, or other improper influences, any statement which he makes in that situation is involuntary and may not be considered by you.

In deciding whether the statement in this case was voluntary, you should weigh all facts and circumstances surrounding the making of the statement which shed light on whether the statement was the product of an essentially free will and choice and not of a will and choice overborne by pressure. The facts and circumstances you should consider are the age, the intelligence, the personality, the education, the experience and mental and physical state of Mr. Ort, how the Defendant was treated, the time, place and conditions under which the statement was made, what was said and done by Mr. Ort, by the persons who questioned him, and by anyone else who was present. You should also consider whether the Defendant was told and knew that he had a right to remain silent, that anything he said could be used against him, and that he had a right to the advise [sic] and presence of his own or a free lawyer.

Now, if you have found that an arson was committed in accordance with the instructions I gave you a moment ago and if you find that Mr. Ort made the statement voluntarily, you may then consider the statement as evidence against him. You should consider in determining how much weight to give to this piece of evidence the circumstances surrounding the making of his statement along with all the other evidence in the case in judging the truthfulness of the statement and deciding how much weight you should give it.

Trial Transcript, pp. 237, 239-241.

This instruction comports with the proposed Pennsylvania Standard Jury Instructions, sections 3.04B and 3.05. Appellant has cited no authority to support his position that the jury must be specifically instructed that the Commonwealth has the burden of proving the voluntariness of the confession by the preponderance of the evidence. In addition to the instructions quoted above relating specifically to the voluntariness of the confession, the jury in the present case was instructed that the Commonwealth had to prove that the crime had been committed by proof beyond a reasonable doubt. Had the jury mistakenly applied this standard to the determination of voluntariness, the error would have redounded to appellant’s benefit. We find that the jury was amply instructed on the voluntariness of the confession, and there was no error in the instructions given to them.. Consequently, counsel was not ineffective for failing to object to the instruction.

Finally, appellant argues that trial counsel was ineffective for failing to object to the Commonwealth’s cross-examination of him with regard to prior fires. On direct examination, it was brought out that appellant stated in his confession that he had started the fire, in part, in an effort to obtain assistance from the Red Cross. On cross-examination, the Commonwealth asked appellant if he had received help from the Red Cross in the past. When he indicated that he had received such assistance, the Commonwealth asked questions to elicit when the assistance had been provided. The answers given by appellant were that he was assisted in 1983 when he lost his trailer to an electrical fire, and in 1984 when his apartment building was condemned following a fire. Appellant argues that the evidence which was brought out on cross-examination was irrelevant and prejudicial because it revealed his connection with previous fire-related incidents with regard to which he was never criminally convicted.

No suggestion was made by the Commonwealth on cross-examination that appellant was responsible for either the 1983 or 1984 fires. Thus, there was no attempt to use the circumstances of the 1983 or 1984 fires as evidence of prior criminal conduct of appellant. Moreover, the evidence was relevant to explain why appellant would think, as he stated in his confession, that a fire in his apartment building might result in aid to him from the Red Cross. Since this evidence was not irrelevant, there was no reason for trial counsel to have objected to it, and therefore counsel was not ineffective.

Finding no merit to any of the underlying issues raised by appellant, we conclude that the trial court properly determined that counsel was not ineffective.

Order affirmed.

BROSKY, J., files a dissenting opinion.