*3 WATKINS, CIRILLO, Before MANDERINO and JJ.* WATKINS, Judge:
This is an appeal from the decree of the Court of Common Division, Pleas of Philadelphia County, Criminal Trial Sec- tion, after defendаnt’s conviction a by jury degree third murder. Defendant 6, was convicted on October 1977 and sentenced on November 1977to term prison of five to fifteen years. with his argued para-
On the defendant April mour, a Mildred in the course of Hodges, During their home. the evening times, the defendant beat Mrs. Hodges several her striking with his fists and her banging head on a table. 24,1977, On April victim’s mother found her unconscious in the house and summoned the police. Ms. Hodges then hospital removed to a wherе she died from injuries her three days later.
* Pennsylvania, Justice Louis L. Manderino of the Court of Judge and Vincent A. Cirillo of the Court of Common Pleas of Montgomery Cоunty, Pennsylvania, sitting by designation. are
Defendant’s counsel filed no post-trial motions as the
record reveals that he did not believe that any meritorious
issuеs existed which would
justify
grant of relief. The
defendant
then
a pro
filed
se
and counsel
appeal
was later
appointed
represent
to
him at the appellate level. Defend-
ant’s three allegations of error all concern a claim of ineffec-
tive assistance of counsel which should have been
raised
post-trial motions
to
pursuant
Pennsylvania Rules of Crimi-
Therefore,
nal Procedure No. 1123.
least,
it is arguable, at
that the defendant has waived his right to
a claim of
pursue
ineffective assistance of counsel as he never raised these
post-trial
issues via
Blair,
motions. See Commonwealth v.
Defendant’s first allegation of error is that the coun sel was ineffective for failing to move for the consolidation of an invоluntary manslaughter with the charge murder and voluntary manslaughter. Originally, the de fendant had been with charged involuntary manslaughter as well as murder and voluntary manslaughtеr. The Common wealth had agreed pros nolle the involuntary manslaugh ter charge and defendant’s counsel went with along this decision. The defendant’s version of the incident was that the victim had tried to him as he was grab out coming of the kitchen and that he flung her arm from away him throwing her up against a wall which actions resulted in her injuries *4 and death. This version of the facts arguably could have supported a verdict of involuntary manslaughter. However, the' record reveals that trial counsel’s strategy was to obtain a complete of the acquittal defendant on all charges. Fol this lowing it was indeed strategy, reasоnable trial counsel to agree to the nolle pros the man involuntary slaughter as the if story, believed aby jury, would not have a verdict for either supported murder or voluntary Had that manslaughter. case, been the defendant could not have been tried on the subsequently
445 involuntary manslaughter charge bеcause of the decisions in Commonwealth v. Campana, 455 Pa.
(1974). This strategy reasonable entirely and was pur sued in the best Thus, interest of his client. it is apparent that particular this course of action pursued trial by counsel basis, had some reasonable designed to effectuate his client’s interest and as such did not amount to ineffective assistance of counsel. Commonwealth ex rel. Washington v. Maroney, (1967). As such we hold that the defendant’s first allegation of error is without merit.
Defendant’s second allegation of error is that his
trial attorney was ineffective for
failing
object to certain
remarks madе
prosecutor to the jury. During the
Commonwealth’s summation the prosecutor had stated sev
eral times that “Pm the last person to speak for Mildred
Hodges” and had questioned the relevance of defendant’s
trial counsel’s remarks to the effect that the victim was an
alcoholic. The proseсutor pointed out that several of the
witnesses had said
bad
nothing
about the victim and had
pointed out on several occasions that the victim was dead.
A review of the remarks of which defendant complains
reveals that
are fair
they
comments on the evidence present
ed at the trial and cannot be construed as an inflammatory
appeal to the jury’s emotions. A prosecutor is entitled to
make fair comments on the evidenсe and to suggest to the
jury appropriate inferences from that evidence. Common
wealth v.
448
Revty,
Pa.
446 of error is that his trial allegation third
Defendant’s
to
an
failing
request
involuntary
for
counsel was ineffective
gist
from the court. The
of defend
charge
manslaughter
an
trial counsel should have insisted on
claim is that his
ant’s
charge.
involuntary manslaughter
held that
the
7, 1977,
Court
On Octobеr
involuntary
defendant an
grant
refusal
to
lower court’s
the defendant un
when
requested
manslaughter
was
similar to those
our case
somewhat
der circumstаnces
entitled to such a charge
error and that the defendant
for
man
involuntary
there was no indictment
though
even
Polimeni,
430, 378
v.
474 Pa.
Commonwealth
slaughter.
449,
Garcia,
v.
474 Pa.
(1977)
A.2d 1189
and Commonwealth
there was some-evidence
(1977).
A.2d 1199
In our case
378
(defend
a charge
would have
such
supported
that arguably
he
the viсtim when she attacked
pushed
ant’s statement that
his
resulted in her
push
injuries
that
him while drunk and.
However,
trial was
the last
of defendant’s
death).
day
and
cannot be hеld to be ineffec
6,
attorney
1977. An
October
law.
is
change
a
in the
Counsel
failing
anticipate
tive for
to
in the law.
developments
future
predict
not
to
required
Roach,
(1978);
v.
479 Pa.
In strategy inconsistent with trial counsel’s would have been on all outright acquittаl an to obtain attempting Musi, v. 404 A.2d charges. See Commonwealth *6 Nix, J., Therefore, we hold that by 378 [Opinion 1979]. all without merit. of error are allegations of sentenсe affirmed. Judgment MANDERINO, J., concurs. was reached to the death of MANDER- prior
This decision INO, J.
MANDERINO, Judge, concurring: I concur in the result reached the other members of the in this cаse since the as a panel panel, sitting Superior Court follows the decision of the Court in panel, Com- Musi, v. (1979), monwealth which controls this sitting case. When as a member of the Su- Court, duties, as preme distinguished present from sit- my Court, ting by special designation Superior as a member of I Musi, have view. expressed contrary Commonwealth v. J., supra, (Manderino, dissenting). Pennsylvania v.
COMMONWEALTH GOTTSCHALL, Appellant. Diane Lucille Superior Pennsylvania. Court of
Argued Aug. 1979.
Filed Dec. 1979.