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Com. v. Weaver

Supreme Court of Pennsylvania
Mar 16, 1983
500 Pa. 439 (Pa. 1983)

Summary

holding that the authority to present a defense conceding general liability is solely within the province of the accused

Summary of this case from Commonwealth v. Montalvo

Opinion

Argued January 27, 1983.

Decided March 16, 1983.

Appeal from the Court of Common Pleas of Tioga County at Nos. 140 and 140A, Criminal Action 1977, Robert M. Kemp, P.J.

Priscilla M. Walrath, Wellsboro (Court-appointed), for appellant.

Rudolph J. Van der Hiel, Dist. Atty., Mansfield, for appellee.

Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.


OPINION OF THE COURT


On January 13, 1978, in a trial by jury in the Court of Common Pleas of Tioga County, the appellant, Francis Eugene Weaver, was found guilty of murder of the first degree and reckless endangerment. Judgments of sentence, consisting of life imprisonment for the murder conviction and a two year suspended sentence for the reckless endangerment offense, were imposed. The instant appeal ensued.

Trial counsel is alleged to have been ineffective for presenting, without appellant's consent, a defense of diminished capacity despite appellant's insistence upon presenting a defense that someone else had committed the murder for which he was charged. We have reviewed the evidence, and the defense alternatives considered by counsel, and find ample support for the finding of the court below that counsel presented the only viable defense. Nevertheless, an accused offering evidence under the theory of diminished capacity concedes general criminal liability, Commonwealth v. Walzack, 468 Pa. 210, 221, 360 A.2d 914, 919-920 (1976), and the authority to make such a concession is solely that of the accused. See Commonwealth v. Davis, 457 Pa. 194, 198-199, 322 A.2d 103, 106 (1974). See also Commonwealth v. Mizell, 493 Pa. 161, 164, 425 A.2d 424, 426 (1981).

At the post-trial hearing on claims of trial counsel's ineffectiveness, appellant testified as follows:

Two days before trial, before the picking of the jury, I was given a copy of a case called Commonwealth vs. Walzack. I don't particularly know the cites. And told to read it over, that was our defense. It had to do with diminished capacity. I wanted to go in with a not guilty plea. But they wished to go in with diminished capacity, and that's what we went in with.

Appellant's trial counsel's testimony as to the defense selected was the following:

If I may make a comment. I don't think that we were . . we had convinced Mr. Weaver of what our defense was going to be, until the day before we actually put on our defense. We had had the ballistics information gathered. We had the various medical and psychological reports. Mr. Weaver kept telling us that the defense he wanted to use was that someone from the building adjacent to the shop, had shot Mr. Walls. We told him that that was not a viable defense and that we felt that the only defense that he had was the diminished capacity defense. And that's what was agreed to the day before we went and actually put on the defense's case. That was agreed to by Mr. Weaver.

Although counsel testified that appellant agreed to the diminished capacity defense, and the record would amply support a finding that such an agreement occurred, there is simply no finding of fact by the court below as to whether the requisite agreement occurred. Indeed, the court concluded, "It is apparent that the only defense the defendant had was diminished capacity. The defendant's desire to pursue the theory that some other person fired the fatal shot could not be supported in anyway by the evidence." Thus, we remand to the court below for a finding of fact as to whether appellant did agree, in response to the advice of counsel, that a diminished capacity defense should be presented.

We have reviewed, but find no merit in, the other issues raised by appellant, including (1) sufficiency of the evidence; (2) denial of bail; (3) denial of venue change; (4) suppression of evidence; (5) exclusion of appellant's testimony; (6) admission of photographs; and (7) trial counsel's ineffectiveness with regard to preparation for trial, failure to seek a continuance, choice of favorable defense testimony, sequestration of witnesses, conflicts of interest, and failure to object to an offer of proof.

Judgment of sentence vacated and case remanded for a finding on this issue. If the lower court finds appellant consented to this defense, judgment of sentence to be reinstated. If, however, the lower court finds he did not consent, a new trial is to be granted.


Summaries of

Com. v. Weaver

Supreme Court of Pennsylvania
Mar 16, 1983
500 Pa. 439 (Pa. 1983)

holding that the authority to present a defense conceding general liability is solely within the province of the accused

Summary of this case from Commonwealth v. Montalvo

holding that even if diminished capacity was the only viable defense, trial counsel would be deemed ineffective for presenting this defense without the consent of the defendant

Summary of this case from Commonwealth v. Weiss

holding that even if diminished capacity was the only viable defense, trial counsel would be deemed ineffective for presenting this defense without the consent of the defendant

Summary of this case from Commonwealth of Pa. v. Hutchinson

explaining that “an accused offering evidence under the theory of diminished capacity concedes general criminal liability, and the authority to make such a concession is solely that of the accused,” and determining, therefore, that defense counsel was without authority to ignore defendant's insistence on presenting an innocence defense

Summary of this case from State v. Tribble

In Weaver, counsel for Weaver had presented, without the consent of Weaver, a diminished capacity defense, even though Weaver insisted that someone else had committed the murder for which he was on trial.

Summary of this case from Com. v. Spotz
Case details for

Com. v. Weaver

Case Details

Full title:COMMONWEALTH of Pennsylvania v. Francis Eugene WEAVER, Appellant

Court:Supreme Court of Pennsylvania

Date published: Mar 16, 1983

Citations

500 Pa. 439 (Pa. 1983)
457 A.2d 505

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