COM. v. SIMMONS, Pa., Judgment, Law, casemine.com

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Attorney(S)

Eric B. Henson, Deputy Dist. Atty., Sarah Vandenbrook, Asst. Dist. Atty., Gaele McLaughlin Barthold, Philadelphia, for appellant. Kenneth L. Mirsky, Philadelphia, for appellee.

Judges

NIX, Chief Justice, concurring.

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Smart Summary

Factual and Procedural Background

Rodney Simmons, the appellee, was convicted of third degree murder and possession of an instrument of crime following an incident on April 14, 1975, in Philadelphia. Simmons, seated in a car driven by Kenny Biggs, engaged in an altercation with individuals standing on the street. After the car pulled away, one individual followed with a stick. At a red light, Simmons fired a shot across the driver's seat, killing an innocent bystander, Samuel McCrae. Simmons was tried before Judge Theodore S. Gutowicz and a jury, resulting in a guilty verdict and sentences totaling up to twenty years for murder and additional time for the weapons conviction. This Court affirmed the judgment of sentence on direct appeal.

Subsequently, Simmons filed a petition under the Post Conviction Hearing Act (PCHA). The petition was denied by the trial court. On appeal, the Superior Court reversed the denial, finding trial and PCHA counsel ineffective for failing to object to a defective jury instruction on self-defense, and remanded for a new trial. The Commonwealth sought discretionary review before this Court, challenging the Superior Court’s findings on two grounds: that there was no evidentiary basis for a self-defense charge, and that the Superior Court improperly raised an issue sua sponte not presented by the parties.

Legal Issues Presented

Whether the appellee was entitled to a jury instruction on self-defense given the evidence presented at trial.
Whether the Superior Court erred by considering an issue sua sponte—specifically, the defense of others—when it was not raised by either party.
Whether trial and PCHA counsel were ineffective for failing to object to a defective self-defense jury instruction.

Arguments of the Parties

Commonwealth's Arguments

The appellee was not entitled to a self-defense instruction because there was no evidence to support such a defense.
The Superior Court erred by raising, on its own initiative, an issue of defense of others that was not argued by the parties.
The failure of counsel to object to the defective self-defense instruction did not constitute ineffectiveness because the underlying claim lacked merit.

Appellee's Arguments

The trial and PCHA counsel were ineffective for failing to object to the defective self-defense jury instruction.
The defective instruction on self-defense warranted a new trial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977)	Determining if counsel's challenged inaction is of arguable merit in ineffectiveness claims.	Used to establish that if a claim lacks merit, counsel is not ineffective for failing to pursue it.
Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977)	Reinforces that absence of merit in a claim negates ineffectiveness of counsel for not raising it.	Applied to conclude counsel was not ineffective for failing to object to a defective instruction unsupported by evidence.
Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977)	Standards for justifiable use of force in self-defense.	Outlined the necessary conditions for a valid self-defense claim, which were not met here.
Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976)	Further delineation of self-defense requirements.	Supported the court’s analysis that appellee failed to meet self-defense criteria.
Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975)	Additional precedent on self-defense standards.	Used to reinforce the elements required for self-defense which were lacking in this case.
Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978)	Appellate courts will not consider issues not preserved or raised by the parties.	Applied to hold that the Superior Court improperly considered an issue not raised by the parties.
Commonwealth v. Simmons, 482 Pa. 496, 394 A.2d 431 (1978)	Previous affirmation of appellee's conviction and sentence.	Referenced to provide procedural background on the initial appeal.

Court's Reasoning and Analysis

The Court recognized that the self-defense instruction given to the jury was defective because it improperly placed the burden of proof on the defendant. However, the Court applied the standard for ineffectiveness of counsel, which requires that the underlying claim have arguable merit. Since appellee failed to present sufficient evidence to justify a self-defense instruction in the first place, the defective instruction was harmless beyond a reasonable doubt.

The Court analyzed statutory provisions (18 Pa.C.S.A. § 505(a)) and relevant case law defining the criteria for self-defense, emphasizing that the defendant must be free from fault, reasonably believe in imminent danger, and not violate any duty to retreat. Here, the victim was an innocent bystander who posed no threat, and appellee admitted the victim was two car lengths away when shot, negating any imminent threat.

Regarding the defense of others issue, the Court held that the Superior Court erred by raising this issue sua sponte because it was not preserved or argued by the parties. The Court noted that the standards for a defense of others instruction are the same as for self-defense, and the evidence did not support such a charge. Therefore, counsel's failure to raise it could not be deemed ineffective.

Consequently, the Court reversed the Superior Court's decision and reinstated the original judgment of sentence.

Holding and Implications

The Court REVERSED the decision of the Superior Court and reinstated the judgment of sentence of the Court of Common Pleas of Philadelphia.

The direct effect is that the appellee's conviction and sentence stand as originally imposed. The Court clarified that counsel is not ineffective for failing to object to a jury instruction unsupported by evidence. No new legal precedent was established beyond affirming existing standards for ineffectiveness claims and the proper scope of appellate review.

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COMMONWEALTH of Pennsyl v. nia, Appellant

OPINION

McDERMOTT, Justice.

This is an appeal from the Order of the Superior Court, reversing defendant's conviction for third degree murder, and remanding the case for a new trial. The Superior Court concluded that because trial counsel was ineffective in failing to object when the jury was given a defective instruction on the issue of self-defense the defendant, Rodney Simmons, was entitled to a new trial. The Commonwealth sought discretionary review of this order, challenging it on two grounds. First they alleged that appellee was not entitled to a charge of self-defense where there was no evidence to support it; and secondly, they contended that the Superior Court erred when it considered sua sponte an issue not raised by either of the parties.

The facts of this case are as follows. On April 14, 1975, appellee Rodney Simmons was in the front seat of an automobile driven by one Kenny Biggs. In the back seat of the car there was an intoxicated individual who used the name "Nut." Sometime between 9 p.m. and 10 p.m. the automobile in question was in the vicinity of 29th and Clementine Streets in Philadelphia. At one point Biggs drove over to the side of the street where three individuals named Michael Jackson, Gregory LaMarr and Clarence Williams were standing. Appellee asked what street gang they were in, to which Williams took offense, apparently because they were not gang members. An argument ensued between appellee and Williams. According to testimony introduced at trial, the car pulled away and Williams proceeded to follow it with a stick in hand. When the car stopped at a red light on 29th and Allegheny Avenue Williams hid behind a tree. Meanwhile, an innocent passerby, Samuel McCrae, unwittingly was walking toward the feckless ruin of juvenile gang war. As Mr. McCrae turned the corner onto Allegheny Avenue appellee leaned across the driver's seat and fired a shot. Mr. McCrae went down to death.

Appellee was tried in the Philadelphia Court of Common Pleas before the very able Judge Theodore S. Gutowicz, and a jury. A guilty verdict was returned for third degree murder and possession of an instrument of crime. Appellee was sentenced to ten to twenty years for the murder conviction, and two and one half to five years for the weapons conviction. Judgment of sentence was affirmed by this Court. Commonwealth v. Simmons, 482 Pa. 496, 394 A.2d 431 (1978). Appellee was represented by Richard P. Abraham, Esquire, at trial and in the unsuccessful appeal to this court.

Appellee, represented by new counsel, filed a petition under the Post Conviction Hearing Act (hereinafter "PCHA"). Following an evidentiary hearing the Honorable Edward J. Blake denied that petition. Represented by yet a third attorney appellee appealed to the Superior Court from denial of relief. The Superior Court reversed and remanded for a new trial, finding appellee's trial attorney, and PCHA attorney, to have been ineffective for failing to challenge the defective self-defense instruction. The Commonwealth's petition for en banc reargument was denied. The Commonwealth petitioned this Court for allowance of appeal and we granted allocatur.

Act of January 25, 1966, P.L. 1580, 19 P. S. § 1180-1 et seq.

In this appeal the Commonwealth contends that the Superior Court erred in finding the two attorneys ineffective for not challenging a defective self-defense instruction. The Commonwealth further asserts the Superior Court erred by sua sponte considering an issue not raised by the litigants.

When ineffectiveness of counsel is alleged the initial determination which must be made is whether the challenged inaction was of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If the claim is devoid of merit then counsel cannot be considered ineffective for having failed to pursue it. Commonwealth v. Gaston, 474 Pa. 218, 378 A.2d 297 (1977).

Application of this standard to the instant case defeats appellee's assertion of ineffectiveness of counsel. Although it is undisputed that the self-defense instruction read to the jury was defective, the effect of such error was harmless beyond a reasonable doubt since appellee did not produce sufficient evidence to have warranted a self-defense instruction in the first place.

The instruction as read impermissibly placed the burden of proof on the defendant for establishing the existence of his asserted defense.

Pursuant to 18 Pa.C.S.A. § 505(a):

The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of lawful force by such other person on the present occasion.

Additionally a claim of self-defense is further proscribed by the following conditions:

(1) The slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing;

(2) The slayer must have reasonably believed that he was in imminent danger of death or great bodily harm, and that there was a necessity to kill in order to save himself therefrom;

(3) The slayer must not have violated any duty to retreat or avoid the danger.

Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977); Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975).

Instantly, the standards necessary for a successful self-defense claim were clearly not met. Appellee herein was never threatened in any manner by the random victim Samuel McCrae. To the contrary, Mr. McCrae's fatal step was walking in the vicinity where an altercation had just occurred between appellee and a number of other individuals. While appellee did not testify at trial he did make two statements to the police, indicating that the unarmed victim was two car lengths away when he shot him. This would clearly negate any assertion that a physical attack was immediately forthcoming. Further, there was no evidence that the hapless Mr. McCrae offered or posed any threat of any kind to appellee or anyone. Indeed, to suggest from the evidence presented that he did is a pure gratuity and the source of an error complained of by the Commonwealth. Having failed to prove that a self-defense instruction was warranted at all, an attorney's failure to challenge a defective self-defense charge does not constitute ineffectiveness.

The Commonwealth asserts that the Superior Court erred by sua sponte considering an issue not raised by the parties. Specifically they assert that the Superior Court should not have reversed on the basis that the jury should have been instructed on the theory of defense of others.

In his appeal to the Superior Court appellee's challenge regarding the defective self-defense charge did not include the allegation that a defense of others charge should have been given. The Superior Court therefore exceeded its bounds in considering the issue. "It is of course elementary that issues not preserved for appellate review or, even if preserved at the trial level, not raised by a party to an appeal, will not be considered by an appellate court." Commonwealth v. McKenna, 476 Pa. 428, 437, 383 A.2d 174, 179 (1978). Since there was no evidence presented which would have justified an instruction on this issue, counsel's failure to raise the issue there cannot be labeled as ineffectiveness. The victim herein did not threaten the driver or other occupant of the vehicle in which appellee was driving. Also, appellee, being in an automobile, was in a position where he could retreat had he chosen to do so. In order to successfully invoke a "defense of other" claim the same standards which are required for self-defense must be met. Under the evidence here a request for such a charge was neither sustainable nor required.

In light of our disposition the decision of the Superior Court is reversed and the judgment of sentence of the Court of Common Pleas of Philadelphia, Criminal Division, reinstated.

NIX, C.J., files a concurring opinion.

NIX, Chief Justice, concurring.

I concur in the result reached by the majority solely because there is no basis in the evidence in the instant case for a charge on the use of force either in self protection, 18 Pa.C.S.A. § 505, or for the protection of other persons, 18 Pa.C.S.A. § 506.

COM. v. SIMMONS