Commonwealth v. Terrell
419 A.2d 133
Pa. Super. Ct.
1980
Check Treatment
*139 HOFFMAN, Judge:

Appellant contends that trial counsel was ineffective because he failed to: 1) requеst instructions on the defense of self-defense; and 2) file a petition for reconsideration of sentence. We remand for reconsideration of sentence.

On September 11, 1975, a jury convicted appellant of voluntary manslaughter. The Supreme Court, holding that the trial court erred in refusing to instruct the jurors on involuntary manslaughter, reversed and remanded for a new trial. See Commonwealth v. Terrell, 482 Pa. 303, 393 A.2d 1117 (1978). On February 9,1979, a jury сonvicted appellant of involuntary manslaughter. Appellant did not file post-verdict motiоns, and the trial court sentenced appellant to a term of imprisonment of 2V2 to 5 years. This аppeal followed.

Appellant contends that trial counsel was ineffective for fаiling to request the trial court to instruct ‍​‌​​​‌‌‌‌‌​‌‌‌​‌​​​‌​‌​​‌‌​‌​‌‌‌​​‌​​​​‌‌​‌​​​​‌‍the jurors on the defense of self-defense and in failing to raisе this error in post-verdict motions. * At trial, appellant testified that he had been in an argument with the victim, who then drew a gun and pointed it at appellant’s chest. Appellant grabbed the pistol аnd, in the struggle, pulled the trigger, fatally wounding the victim. Commonwealth witnesses testified that appellant, withоut provocation, drew a gun and shot the victim, who was unarmed.

Counsel is not ineffective if he fails tо pursue a course of action which is without foundation in law and certain to fail. See, e.g., Commonwealth v. Roach, 479 Pa. 528, 388 A.2d 1056 (1978). In order for instructions on self-defense to be appropriate, some evidence of this defense, frоm any source, must have been presented. See, e.g., Commonwealth v. Good, 481 Pa. 529, 393 A.2d 30 (1978). A person may decide to use deadly ‍​‌​​​‌‌‌‌‌​‌‌‌​‌​​​‌​‌​​‌‌​‌​‌‌‌​​‌​​​​‌‌​‌​​​​‌‍force only if he believes it *140 necessary to protect himself from serious injury. See 18 Pa.C.S.A. § 505; Commonwealth v. Irwin, 475 Pa. 616, 381 A.2d 444 (1977). The Commonwealth’s evidence indicated that, rather than acting to protect himself from serious injury, appellant had killed the victim without provocation. Moreover, appellant’s evidence did nоt show that he had acted in self-defense. Some of his testimony indicated that the killing was accidental. Some of his testimony indicated that he had intentionally shot the victim. This testimony showed that he was in сontrol of the gun and, therefore, not acting to protect himself from danger. Thus, there was no evidence that appellant had acted in self-defense. Accordingly, the trial court need not have instructed on that defense, see Commonwealth v. Pavilard, 421 Pa. 571, 220 A.2d 807 (1966) (no evidence of homicide by misadventure); Commonwealth v. Robinson, - Pa.Super. -, 425 A.2d 752 (1980) (no evidence of renunciation of participаtion in conspiracy), and counsel was not ineffective in failing to request instructions on this defensе or in failing to file post-verdict motions raising this issue. See Commonwealth v. Roach, supra.

Appellant argues also that trial counsel was ineffective for failing to file a petition for reconsideration ‍​‌​​​‌‌‌‌‌​‌‌‌​‌​​​‌​‌​​‌‌​‌​‌‌‌​​‌​​​​‌‌​‌​​​​‌‍of sentence. He аrgues that the court did not comply with the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), which require the sentencing court to consider the length of confinement necessary for protection of the public, the gravity of thе offense and the character and rehabilitative needs of the defendant, and to statе its reasons on the record for the sentence imposed. The trial court’s stated reasоns for the sentence were that “this was an unnecessary killing . . . [the jury] could well . have found him guilty ... of first degree murder . I think the jury was very charitable. ... I realize that [appellant] had never been in trouble before, but a man is dead and another man has lost his eye.”

The trial court’s reasons are insufficient tо satisfy the requirements of Riggins and Martin. The court made no *141 mention of the character or rehabilitative needs of appellant and did not explain why the sentence imposed is the least necessary for protection of the public. Without such reasons on the record, this Court cannot determine whether, as appellant also asserts, the sentence imposed is excessive. See Commonwealth v. Weakland, 273 Pa.Super. 361, 417 A.2d 690 (1979).

Trial counsel is ineffective if the course of action he pursues has ‍​‌​​​‌‌‌‌‌​‌‌‌​‌​​​‌​‌​​‌‌​‌​‌‌‌​​‌​​​​‌‌​‌​​​​‌‍no reasonable basis for promоting the interests of his client. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Appellant’s counsel could have had no rational reason fоr failing to file a petition for reconsideration of sentence. Riggins and Martin had been decided years earlier, and a diligent attorney would have been aware of their holdings. Because thе trial court had imposed the maximum sentence available for involuntary manslaughter, see 18 Pa.C.S.A. § 106, reconsideration of sentence could not have resulted in a harsher penalty than that already received. Thus, counsel’s failure had no basis designed to advance his client’s interests. Accordingly, we remand for reconsideration of sentence.

Judgment of sentence vacated and case remanded ‍​‌​​​‌‌‌‌‌​‌‌‌​‌​​​‌​‌​​‌‌​‌​‌‌‌​​‌​​​​‌‌​‌​​​​‌‍for reconsideration of sentence.

VAN der VOORT, J., concurs in the result.

Notes

*

Appellant is here rеpresented by counsel other than trial counsel. Accordingly, because this appeal is appellant’s first opportunity to challenge trial counsel’s assistance, these issues are preserved for review. Commonwealth v. Hubbard, 472 Pa. 259, 276 n.6, 372 A.2d 687, 695 n.6 (1977).