Following a jury trial, appellant Bruce Person was convicted of first-degree murder, aggravated assault, and possessing an instrument of crime. The conviction stemmed from the death of his wife, Beatrice Person. After denial of post-verdict motions, appellant was sentenced to life imprisonment for murder and to concurrent prison terms of two and a half to five years for aggravated assault and one to two years for the weapons offense. This appeal followed.
The testimony presented at trial indicated that on May 5, 1982, at approximately 2:50 p.m., Person went to the coffee shop where his wife worked to speak with her. Their conversation ended in argument soon thereafter and the decedent walked back into the rear of the shop. Person quickly followed her and, as he entered the kitchen, he picked up a utensil and began stabbing her repeatedly.
*344 Dorothy Garland, the decedent’s grandmother, was sitting in the apartment over the shop when she heard someone yelling for help. Mrs. Garland ran downstairs to the shop where she found Person kneeling over the decedent, stabbing her. Person then proceeded to slash Mrs. Garland across the arm with a knife.
A 13-year old boy who had been working in the coffee shop approached a Mr. James Long, located across the street, for assistance. Long ran to the coffee shop where he found Mrs. Garland holding her arm and a man leaning over a young woman striking at her. The man physically engaged Long, striking him repeatedly about the face and chest with his fists. Long retaliated, but the man escaped. Although Long was unable to identify the man who struck him, he did state that they were the only people present in the shop at the time.
The police arrived at the scene at approximately 3:40 p.m. where they found the decedent lying on the floor unconscious. An ambulance was summoned to transport the victim to the hospital. She was pronounced dead on arrival as a result of multiple stab wounds. Person was arrested that same evening.
Appellant’s first contention is that the crime of murder was not properly explained to the jury. Specifically, appellant argues that the definition of malice given by the trial court was grossly in error in that the court defined malice and intent as one and the same. Thus, appellant submits, the court told the jury that intent is the only element necessary to be proven beyond a reasonable doubt, thereby relieving the Commonwealth of its burden to prove the existence of malice to sustain a first-degree murder conviction.
The trial court defined malice as follows:
A killing is with malice and therefore murder if the killer acted with one of the following states of mind: An intent to kill or an intent to inflict serious bodily harm or injury or a wickedness of disposition, a hardness of heart, cruelty, recklessness of consequences, and a mind without *345 regard to social duty, indicating an unjustified disregard for the probability of death or great bodily harm, and an extreme indifference to the value of human life.
Our standard of review in determining whether a jury instruction is proper is well documented. A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations.
Commonwealth v. Orlowski,
A comparison of the court’s charge in the case at bar with the definition of malice as applied to first-degree murder in our previous decisions indicates that the charge was proper as a matter of law inasmuch as it furnished the jury with an accurate statement of the elements comprising first-degree murder. This Court has recently promulgated the following definition of malice:
The Pennsylvania Supreme Court has established that malice may be inferred from attending circumstances. It consists either of an express intent to kill or inflict great bodily harm, or of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, indicating unjustified disregard for the probability of death or great bodily harm. Commonwealth v. Matthews,480 Pa. 33 ,389 A.2d 71 (1978); Commonwealth v. Lawrence,428 Pa. 188 ,236 A.2d 768 (1968).
Commonwealth v. Kersten,
[T]o support a finding of first degree murder, we must find that the killing was a malicious one accompanied by a specific intent to kill. If the act of the defendant under all the circumstances properly gives rise to an inference that the appellant knew or should have known that the consequence of his act would be death or serious bodily harm, malice is present.
Id.,
We find the trial court’s instructions in the instant case to be in complete harmony with accepted definitions of malice. Accordingly, we reject the appellant’s claim and hold that the trial court’s instructions were entirely proper.
Appellant’s second claim is that trial counsel should have been allowed to withdraw from the case when he informed the calender judge that the attorney-client relationship between Mr. Person and himself had deteriorated. At a pre-trial hearing held on June 13, 1983, trial counsel stated that appellant told him that he did not want him to be his lawyer. Counsel further stated that they almost got into a fistfight and expressed concern for his own personal safety at trial. Appellant alleges that under such circumstances, it was an abuse of the court’s discretion not to appoint new counsel.
We note initially that there is some confusion as to whether trial counsel made a proper motion to withdraw from the case. Several days prior to commencement of appellant’s trial, trial counsel appeared before the court to present appellant’s omnibus pre-trial motions. He also stated the following:
[Trial counsel]: I really have two problems. One problem developed yesterday. I went to see Bruce Persons. Bruce Persons said he didn’t want me to represent him, that I was from Buford Tatum’s office, I was out of the same office that Buford Tatum is from. Buford Tatum had had the case initially. When he resigned, the case *347 was—I was then appointed counsel for Bruce Persons. As it went, we almost got into a fist fight at the prison and I wanted the court to know that. I also want the Court to know that the man did stab his wife thirty-four times. I would hope that if I am forced into remaining in the case, that this guy be searched and—
The Court: Sure, he would be searched.
[Trial Counsel]: I mean, since I have to sit right by him, pencils and all that kind of stuff, I don’t really want to have my attention totally on him and not what Pm doing. As I said, I don’t know how it’s going to develop, but it was not very pleasant yesterday and I was upset by it all, but I intend on defending myself. I don’t intend to let this man hurt me.
The Court: Sure.
[Trial Counsel]: Now, the other thing I want the court to be aware of is that he is not at all cooperating with me. I do need, however, in order to defend the man, a psychiatric examination. If the court could order a forthwith psychiatric examination, it would be most helpful to me. The Court: Well, that should have been done long ago.
Contrary to appellant’s assertions, we find no evidence from this colloquy of any request by trial counsel to withdraw from the case. Nor does present counsel in his brief to this Court direct us to any place in the record where a written petition was filed or the issue of withdrawal was otherwise raised.
See
Pa.R.A.P. 2117(c) (statement of place of raising or preservation of issues);
see also
Pa.R.Crim.P. 306, 309(a), 42 Pa.C.S.A. Appendix (1983). From our reading of the record, it appears counsel told the court only that appellant was dissatisfied with counsel and that he wanted appellant to be routinely searched. Consequently, and under ordinary circumstances, this issue would not be reviewable on appeal since it was not raised by the appellant at the trial court level.
See Neshaminy Water Resources Authority v. Del-Aware Unlimited, Inc.,
Upon appellate review, we are mindful that the decision whether a petition for change of court-appointed counsel should be granted is within the sound discretion of the trial court,
Commonwealth v. Segers,
In
Commonwealth v. Pittman,
[I]n determining whether or not the trial judge has palpably abused his discretion, we should bear in mind that it is necessary to establish more than a mere error of judgment. It is only if we determine that the “law is overriden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, [that] discretion is abused.” Commonwealth v. Niemetz,282 Pa.Super. at 445 n. 12,422 A.2d at 1376 n. 12, quoting, Man O’War Racing Association Inc. v. State Horse Racing Commission,433 Pa. 432 , 451 n. 10,250 A.2d 172 , 181 n. 10 (1969), quoting, Mielcuszny v. Rosol,317 Pa. 91 , 93-94,176 A. 236 , 237 (1934).
*349 Under the circumstances of the instant case, we find no abuse of discretion by the court in denying appellant’s request for replacement of counsel. It is well settled that an indigent is entitled to free counsel, but not to free counsel of his choice. Commonwealth v. Johnson, supra; Commonwealth v. Olivencia, supra. Although the right to counsel is absolute, there is no absolute right to a particular counsel. Johnson; Olivencia. A motion for change of counsel by a defendant to whom counsel has been assigned shall not be granted except for substantial reasons. Pa.R.Crim.P. 316(c)(ii).
The appellant argues here that the trial court’s refusal to appoint new counsel is inconsistent with the Supreme Court’s holding in
Commonwealth v. Tyler,
AFFIRMED.