*1 confers substan- inherently system The juvenile warranted. tial benefits: a different view do take courts in the juvenile
“[Jjudges counterparts their taken by their role than that * * * criminal courts. and utilizes much has available juvenile system [T]he services. rehabilitative diagnostic more various fully delinquency of a declaration end result [T]he find- than a less onerous from and different significantly * * *” of criminal guilt. ing 350, 354-55 348-49, 265 A.2d Appeal, Terry 1976, 29 L.Ed.2d aff’d, 403 S.Ct. (1970), U.S. assumption, Further, majority’s to the contrary . to make for counsel transfer is not not to seek a decision benefits the substantial forgo the decision to alone. Clearly be and must is crucial system the juvenile conferred by 6355(c) (transfer 42 Pa.C.S. See juvenile. shared by be requested court may to criminal from juvenile for Criminal on Minimum Standards “child”); Project ABA 5.1, the Defense Function Justice, Relating §§ Standards Comment, Waiver: Criminal Draft, 1971); 5.2 (Approved Competence Participation, of Personal The Requirement Interest, 54 Calif.L.Rev. State Legitimate 424A.2d1336 Pennsylvania, Appellant, COMMONWEALTH David MORRIS. Pennsylvania.
Supreme 17, Argued Oct. 5, 1981. Feb.
Decided *2 Barthold, Gaele Goldblatt, Atty., Dist. Deputy H. Steven appellant. for Philadelphia, Asst. Dist. Atty., Pollack, appellee. Philadelphia, L. David LARSEN, ROBERTS, NIX, J., and Before KAUFFMAN, JJ. FLAHERTY THE COURT OF OPINION LARSEN, Justice. *3 of the Commonwealth brought was instant appeal
The Court, 273 order of the from an Pennsylvania of 748, vacated the 477, 417 A.2d which Pa.Super. his following David Morris appellee imposed upon sentence Court, at No. That manslaughter.1 conviction of voluntary case to the Docket, 1979, remanded the 302 Transfer Special allegation appellee’s trial court for an jury for was ineffective that trial counsel crime of instructions on the of involuntary offense on the instructions
Requested
homicide prose
in those
be given only
should
made an issue
been
the offense has
cutions “where
such a
would support
reasonably
and the trial evidence
case
185,
179,
White, 490 Pa.
v.
verdict.” Commonwealth
Williams, 490 Pa.
and Commonwealth
A.2d
these
whether
determining
(1980).
187,
“A person guilty act as of an unlawful in a a direct result of the doing manner, doing or or negligent reckless grossly manner, he negligent act in a reckless grossly lawful Act December causes the death another person.” 2504(a). The P.L. No. 18 Pa.C.S.A. § believed, the con supports if foregoing testimony, arguably Minor’s death unintentionally clusion caused appellee a reckless or grossly negli while an unlawful act in doing Terrell, supra; gent manner. See Commonwealth *4 Polimeni, 430, v. 474 Commonwealth of announcing judgment Court). (1977) (Opinion was, therefore, manslaughter po The crime of involuntary case,2 arguable in and there was at issue the instant tentially necessary to not it examine evi- The Court did find because, shortly appellee’s involuntary manslaughter of before dence trial, every person held of homicide had a this Court that accused request. involuntary manslaughter upon right jury instructions on 559, Smith, (1977). A.2d The 474 Pa. 379 96 See Commonwealth v. Commonwealth, however, correctly points that since this rule of out White, supra, v. Common- law was and discarded Commonwealth on offense. is thus that It merit to instructions requesting counsel had some into whether further necessary inquire interests to effectuate designed appellee’s reasonable basis charging the information to proceed upon not agreeing on not instructions requesting involuntary ex rel. Washington that See Commonwealth crime.3 In 599, 604, 349, (1967). 427 Pa. Maroney, standard, be of sentence will not this applying were within the realm of vacated if trial counsel’s actions Sullivan, 450 Pa. trial or strategy. tactics Commonwealth cert. 93 S.Ct. A.2d denied U.S. (1973). L.Ed.2d 150 or not to request
The decision of whether jury on is a matter of trial instructions involuntary Musi, 486 Pa. A.2d 378 strategy. Commonwealth v. (1979); McGrogan, Commonwealth the crime of man excluding involuntary By in a homicide slaughter prose from the consideration jury’s cution, finding its alternatives confined malicious are intentional within the of Sections 2502 and killing meaning Code, 2503 of or an the instant acquittal. the Crimes case, if had assertion that he did accepted appellee’s the jury Minor, though not even his rejecting intend to stab and kill self-defense, claims have returned a of of it should verdict on which it had been instructed. On of the crimes guilty hand, manslaugh the other had involuntary instructions ter been this possibility outright requested given, The decision to ex could have been foreclosed. acquittal clude from the involuntary manslaughter the offense Williams, supra, illogical wealth be to order new trial on it would account of failure to man- instruction slaughter instruction. This if the did not warrant evidence given not now at
follows from the fact the instruction would be trial, merely repetition of the new the same and there would be a given first Because we find the instructions which were at the trial. meritorious, argument we decline Commonwealth’s be to follow approach taken Court. Commonwealth, trial, ap- 3. At with the the commencement counsel, proval move on the information did not to trial charging *5 therefore, a not, without reasonable consideration jury’s interests, effectuate designed basis objective judgment in vacating erred and the Court Superior hearing. case for remanding sentence and Musi, supra. Commonwealth v. vacating of the Court order
Consequently, the reversed, of sentence is the judgment sentence reinstated. is J., in which
ROBERTS, dissenting opinion filed a J., joined. Justice, dissenting. ROBERTS, relief, any its the accused deny possibility haste whether it has jurisdic- to consider fails even majority it. Court now before of the Superior tion to review order an evidentiary the record for remands merely That order basis for to re- counsel’s to ascertain trial an available instruction quest hence, and, would I exists jurisdiction do not believe that appeal. dismiss allowance of The finality requirement, “final” order.
Absent here review, is well-stated authority this Court’s essential to Standard Practice: Pennsylvania decree is final order, purposes
“An or judgment, between the litigation unless it terminates appeal from further party to the suit parties precluding order, judgment, such rendering action in the court decree.” (rev. 1962). 51 at 48 ed. General)
Vol. ch. 38 (Appeals remand has court’s appellate This is not a case where an Broad Triangle Golden Compare an issue. resolved finally n.4, 527-28 of Pittsburgh, Inc. v. casting, City Court remand (Commonwealth n.4 involving question further contemplated proceedings” “[n]o remand order of To contrary, presented appeal). parties both ample would have afforded tribu- establish, fact-finding a proper before opportunity counsel’s actual regarding nal, positions their respective *6 manslaughter an failing request reasons for the Common- hearing, the evidentiary instruction. After to the argue Superi- free to have been entirely wealth would is without founda- ineffectiveness alleged or Court that to request reason not fact, that counsel had good tion in See, e. Com- g., instruction. manslaughter the involuntary 449 Pa. McGrogan, monwealth for a conclusion that I fail to see justification Thus any for an remanding order of the Court Superior further action.” respect “precluded has any as should be dismissed this allowance of posture, appeal improvidently granted. has caused it overlook
That haste majority’s all the more apparent concern becomes serious jurisdictional assist- accused’s ineffective of the analysis majority’s that, even under its concludes ance claim. The majority man- on involuntary view of when an instruction restricted accused, see Commonwealth available to the slaughter (1980), A.2d 399 and Commonwealth White, 490 Pa. (1980), an Williams, Pa. How- would have been available. instruction which the order ever, guidance without the evidentiary major- have provided, would properly Court involun- that, request an failing on to conclude goes ity an instruction, seeking counsel ac- tary quittal. speak, a silent record that, making
It must be apparent this own failed to follow Court’s has majority utterly times, but apparently basic It has been said many tenets. enough, often fact, to be expecting not sit as a trier Court does “[t]his is more credible. side that one or the other persuaded never and we would for a trial court That is a task only process.” invade that area of the judicial 212, 217, 253 Corp., I. T. Credit Reed v. Universal C. absence of counsel’s actual (1969). Surely involuntary manslaughter reasons for instruction, Pennsyl- focus under proper beyond question counsel, see Com- test of ineffective assistance vania’s Maroney, monwealth ex rel. Washington for dismissing the more reason (1967), provides A.2d 349 all allowance of appeal. fully permits
Because the order of the record, I would dismiss ap- of the proper development peal. J., dissenting opinion. this joins . *7 Pennsylvania, Appellee,
COMMONWEALTH WASHINGTON, Appellant. Delmar Supreme Pennsylvania. 23, 1980.
Argued Oct. 5, 1981.
Decided Feb.