Commonwealth v. Brightwell

OPINION OF THE COURT

O’BRIEN, Chief Justice.

Appellant, Richard P. Brightwell, was convicted of, inter alia, both murder of the third degree and voluntary manslaughter for the June 24, 1974 shooting killing of Nanny Brown. Before the trial court accepted these obviously inconsistent verdicts, he called opposing counsel to sidebar and stated that “It is my understanding that the verdict in this case would be recorded as guilty of murder of the third degree. ... Do you agree to that?” When both counsel agreed, the trial court announced that appellant had been found guilty of murder of the third degree. No objection was taken by appellant. New counsel represented appellant at post-verdict motions, which were denied. Appellant was sentenced to ten-to-twenty years imprisonment. On direct appeal, while represented by the same counsel as on post-verdict motions, appellant argued the inconsistent verdict issue, but we held the issue had been waived because of appellant’s failure to either object at trial or to assert the ineffectiveness of trial counsel. Commonwealth v. Brightwell, 479 Pa. 541, 388 A.2d 1063 (1978).

Appellant subsequently filed a petition pursuant to the Post Conviction Hearing Act, alleging, inter alia, that both trial and appellate counsel had been ineffective for failing to preserve the claim concerning the inconsistent verdicts. Following an evidentiary hearing, the court denied appellant’s requested relief and this appeal followed.

Appellant argues instantly that trial counsel was ineffective for failing to object to the trial court’s actions in ordering the verdict be recorded as guilty of murder of the third degree. Appellant further argues that appellate counsel was ineffective for failing to challenge the effectiveness *426of trial counsel at both post-verdict motions and on direct appeal. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

Our standard of review involving claims of ineffective assistance of counsel is by this time well-settled. As this Court unanimously stated:

“In order to determine whether counsel’s assistance was effective, we must be ‘able to conclude the particular course chosen by counsel had some reasonable basis de-. signed to effectuate his client’s interests.’ Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). [Emphasis in original.] However, counsel cannot be found ineffective for failing to assert a merit-less claim. Only when an abandoned claim is of arguable merit must we inquire into counsel’s basis for not pursuing it. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).”

Commonwealth v. Weathers El, 485 Pa. 28, 32, 400 A.2d 1295, (1979). It is thus incumbent upon us to determine whether appellant’s claim concerning the inconsistent verdict was of arguable merit.

Appellant argues that the jury’s verdict finding him guilty of both murder of the third degree and voluntary manslaughter for the same killing was inconsistent. As appellant correctly points, out, the major difference between murder of the third degree and voluntary manslaughter is the absence of malice in the latter. We believe appellant’s claim clearly has arguable merit, as evidenced by this Court’s statement on appellant’s direct appeal:

“Had appellant objected and the court determined the verdict was inconsistent, the court could have directed the jury to retire and reconsider its verdict. Commonwealth v. Johnson, 369 Pa. 120, 85 A.2d 171 (1952); Commonwealth v. Micuso, 273 Pa. 474, 117 A. 211 (1922).”

Commonwealth v. Brightwell, supra, 479 Pa. at 547, 388 A.2d 1063.

*427Believing appellant’s claim to be of arguable merit, we must proceed to the second step of our analysis; we must determine if appellant’s trial counsel had any reasonable basis designed to effectuate appellant’s interest by not objecting to the inconsistent verdicts.

At the evidentiary hearing on appellant’s P.C.H.A. petition, his trial counsel testified as follows:

“.. . I was relieved when they found him not guilty of the first degree charge. My recollection is that we went to side bar and as Richard indicated the Judge said that obviously it was voluntary manslaughter being part and parcel of third degree homicide did we agree that it was the intention of the jury was to find him guilty of third degree murder and I agreed. I made no objection. It seemed reasonable to me at the time. I cannot, I don’t know that I can go back and put myself in that place and second-guess whether I did the right thing or wrong thing at that time. It seemed to be the right thing at the time. That’s all I can say bout it.

Trial counsel also responded to the following question by the prosecutor:

“Q. Would you be able to say that anything was to be gained by letting the jury go back in the retirement room and deliberate?
“A. Since the Clerk had not recorded the verdict and the Judge had not accepted any verdict at that time I didn’t want to give the jury another opportunity to go out and come back with first degree murder. I wanted the jury since they had the opportunity to review the entire verdict, the Clerk hadn’t recorded the verdict, it hadn’t been made part of the record, he was either going to have the verdict come in at third degree or have the jury go back and consider it. My only consideration was that I didn’t want to send the jury back and do anything more damaging to us. Whether this was correct or in error in hindsight I can’t say.”

Trial counsel was correct in his assertion that an unrecorded jury verdict, though announced, is of no force and is *428alterable or amendable. Commonwealth v. Johnson, 359 Pa. 287, 59 A.2d 128 (1948); Commonwealth v. Dzvonick, 450 Pa. 98, 297 A.2d 912 (1972). Thus, had counsel objected, the Court could have ordered the jury to redeliberate on all possible counts of homicide. Although counsel could have asked that the jury be ordered to redeliberate on only murder of the third degree and voluntary manslaughter, the following passage is particularly instructive.

“The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349 (1967) (Emphasis in original) (Footnote omitted).

Since trial counsel had a reasonable basis for not objecting, appellant was not denied the effective assistance of counsel.

Order affirmed.

NIX, J., concurs in the result. ROBERTS, J., files a dissenting opinion.