Commonwealth v. Merschen

WICKERSHAM, Judge: On February 24, 1978, police arrested appellant, James Merschen and charged him with aggravated assault, possession of'an instrument of crime and unlawfully carrying a firearm without a license, Information Nos. 262-264, April Term, 1978. Those charges arose out of the shooting of Arthur Hoffman by appellant on February 24, 1978 at approximately 4:15 p.m. in the City of Philadelphia where both men were employed. Immediately after the shooting, — 389 — Mr. Hoffman was taken to the Hospital of the University of Pennsylvania where he was admitted in guarded condition and treated for a gunshot wound of the abdomen. Following surgery Mr. Hoffman remained in the hospital three days and thereafter required continued outpatient treatment for permanent disability resulting from the shooting (N.T. Sentencing 1/10/79 at 14). Appellant was tried before the Honorable Marvin R. Halbert of the Court of Common Pleas, Philadelphia County, sitting without a jury on June 29, 1978. Appellant did not deny shooting the victim; he instead claimed that he had acted in self-defense. Judge Halbert found appellant guilty of the above charges. He rejected appellant’s claim of self-defense, holding that while appellant may have believed he was acting in self-defense, the belief was unreasonable (Lower ct. op., 2/25/83 at 4). On January 10, 1979, after denying post-verdict motions, Judge Halbert sentenced appellant to a term of one week to twenty-three months imprisonment in the Forensic Unit of the Philadelphia County Prison with psychiatric supervision of probation for aggravated assault, a consecutive one year probation with psychiatric supervision for possessing an instrument of crime and a concurrent one year probationary period for carrying a firearm without a license. (Appellant served ten days imprisonment and was thereafter released on probation). Appellant was, in addition, ordered to pay $1500 restitution to the victim. Appellant appealed from the judgment of sentence. On appeal he questioned the effectiveness of his trial counsel. Our court granted appellant’s petition for remand for an evidentiary hearing. Judge Halbert heard evidence on the effectiveness of trial counsel on March 13 and October 30, 1980. By opinion dated February 25, 1983, Judge Halbert denied relief, holding that appellant had received effective representation. Appellant appeals, seeking a new trial or discharge for ineffective assistance of counsel.1 Appellant raises the following question on appeal: — 390 — Did Defendant have the effective assistance of counsel at trial where his lawyer failed to present available hospital records that would have bolstered Defendant’s claim he was injured by the complainant and was thus acting in self-defense when he shot the complainant; where his lawyer failed to interview a possible eyewitness to the incident, who is now deceased; and where his lawyer failed to present other evidence which would have cast a shadow on the complainant’s credibility? Brief for Appellant at 3. Based upon our review of the record, briefs of counsel and applicable law, we affirm. The opinion of the Judge Halbert, dated February 25, 1983, has appropriately dealt with the issue raised. As Judge Halbert wrote: “This is an appeal from this Court’s denial of the Defendant’s Post-Trial Motions and from its imposition of sentence of one week to twenty-three months incarceration at the Forensic Unit of Philadelphia County Prison, to be followed by one year probation. The Defendant, after being found guilty by this Court sitting without a jury on the charges of aggravated assault, possession of an instrument of crime, and carrying a firearm on a public street without a license, filed this appeal. One of the issues raised on appeal by Defendant’s attorney, who was not the same attorney who represented him at trial, was that of ineffective assistance of counsel at trial. Accordingly, the file was remanded to this Court for an evidentiary hearing on the ineffective assistance claim. “The case in chief was short and the facts were relatively simple. On February 24, 1978, at about 4:00 P.M., the Defendant, James Merschen, was an employee of the City of Philadelphia working as a foreman in a garage located in a City facility on Delaware Avenue. At about that time, another employee, a maintenance mechanic, Arthur Hoffman, the complainant in this case, approached Merschen and told him that a door was to be open because it was a fire hazard. Merschen’s version of the conversation, however, was different, and allegedly involved threats by Hoff — 391 — man to Merschen. In any event, an argument ensued, and Hoffman began to pursue or follow Merschen from work area to work area at this facility. The exact nature of the argument did not appear to be particularly relevant, since at one point Merschen suddenly turned towards Hoffman, pulled a gun out which had been concealed on his person, and fired it at Hoffman. The bullet struck Hoffman in the lower left side near the abdomen. Hoffman fled the work area, clutching his side from which blood was pouring. He was taken to the hospital, and was in the intensive care unit for one and one-half days, and in the hospital for three days in all. “Merschen took the stand in his own defense, and tried to raise the issue of self-defense. He stated that Hoffman had threatened him in the past, and on the day in question, threatened to ‘bash my head in.’ He further testified that Hoffman kept approaching him, and he turned away and tried to walk away from him, but Hoffman continued to follow. He stated that Hoffman was carrying a bag with a heavy object in it and an umbrella. As he continued to retreat from Hoffman, he felt a sharp pain in his leg, and as he turned around, he claimed to see Hoffman raising the bag toward him as if to do something with it. He claimed to have feared for his life, whereupon he pulled the revolver out and shot Hoffman. “The Court, after having had the opportunity to observe these witnesses, and after having had the opportunity to hear the testimony of an additional witness, a Jacob Rubin, determined that the testimony of Merschen was totally unworthy of belief. Rubin testified that he was in the area at the time that this incident took place, and that despite Merschen’s claims of yelling and shouting of threats by Hoffman, Jacob Rubin heard no such screaming. Furthermore, he testified that he saw nothing in Hoffman’s hands, either prior to the shooting, and especially after the shooting. He observed Hoffman running from one of the work bays after having been shot, holding his abdomen with blood running on his hands. Merschen testified that even — 392 — after the shooting took place, Hoffman still was carrying these objects. No such objects were ever produced at trial. “Mr. Merschen was quite nervous throughout the trial. It was obvious that he had an excellent reputation in the community, as was evidenced by the character testimony presented. It was also quite apparent that he was a very excitable individual, and that this incident would or could cost him his job, despite the fact that he had been employed for over 20 years by the City of Philadelphia. This Court further felt that Merschen may actually have believed at the time that he was defending himself, but from the facts and circumstances which existed at the time of this incident, such a belief was unwarranted and unjustified. Looking at the circumstances in a light most favorable to Merschen, it can only be said that at the very least, his reaction was an over-reaction, and not rising to the level of self-defense based on the reasonable man standard. “Each and every element of the crimes of aggravated assault, possession of an instrument of crime, and of carrying a firearm without a license, was proven beyond a reasonable doubt by the Commonwealth, and verdicts of guilty were entered on each charge. “On remand, Defendant’s new counsel alleged that trial counsel was ineffective in failing to conduct an independent investigation into this incident. Counsel listed seven areas of investigation, which were not performed by trial counsel, and these areas were pursued at the evidentiary hearings. A copy of counsel’s letter of September 4, 1979, outlining these major points is attached to this Opinion. “At the evidentiary hearings, the Commonwealth presented an officer referred to by Mr. Merschen, who investigated a prior incident between him and Hoffman; a co-worker who supposedly had information either about the incident or about Mr. Rubin’s alleged close friendship with Mr. Hoffman; and trial counsel, Stanley Bashman, Esquire. Mr. Bashman addressed the various issues which were raised in a manner which was quite satisfactory in explaining his conduct of trial to this Court. To summarize his position, — 393 — which the Court feels basically reflects the entire conduct of this case, there was no question but that Merschen shot Hoffman. The only question was whether it was in self-defense or not. Apparently from the interviews of Merschen, eight to ten in number, Bashman formed the conclusion that it was a one-on-one occurrence, and that the case would be won or lost depending on the credibility of the witnesses, specifically Hoffman and Merschen. Merschen claimed that medical records should have been obtained and presented to substantiate the fact that he was struck on the leg during this incident. Bashman testified that the hospital stay in question took place approximately three weeks after the incident, and was, therefore, of very little probative value. Merschen himself testified that he was treated after his arrest at St. Mary’s Hospital, and immediately released since there was nothing wrong with his leg at the time, or so x-rays revealed nothing wrong with it. “Merschen claimed that there was a witness, a fellow employee, Henry Oscar Newton, who was in the area at the time the incident occurred. Newton was in poor health, and since the time of the trial itself, has passed away. Bash-man never interviewed this individual, but based upon his interviews with Merschen, did not feel it was necessary to do so. Merschen wanted his supervisor interviewed, and possibly called as a witness, to show that his version of the dispute between himself and Hoffman was true, as opposed to what Hoffman said. He also wanted the time sheets obtained by Bashman, so that they could be used to show that he was on duty and Hoffman was off duty at the time this occurred, which would further detract from Hoffman’s credibility. Merschen also wanted Bashman to investigate a prior incident between himself and Hoffman, at which time the Philadelphia Police were called to the scene, and to talk with fellow employees to show that Jacob Rubin was actually a very close friend of Hoffman’s. At the evidentiary hearing, it became quite apparent to this Court that Mr. Merschen’s requests, if in fact actually made prior to trial, were in the nature of an extremely nervous client, who — 394 — places extreme importance on very minor and insignificant things in hopes that somehow they will be the 'key’ to his case. Mr. Bashman’s many years of experience in dealing with all types of clients, including ones such as this, and as referred to by appellate counsel as a 'nervous Nellie,’ taught Bashman to proceed in the manner in which he proceeded in this case. He was the one who determined what efforts should be made pre-trial. At the evidentiary hearing, the officer was called who was involved in this prior incident that Merschen said would show the violent tendencies of Hoffman, and that officer was able to add nothing. He appeared as the result of a call, and if anything had taken place between these two individuals, it was over by the time he arrived at the scene, contrary to Merschen’s assertions. One of the individuals who was named in Appellate counsel’s letter who would be able to show that Rubin was a close friend of Hoffman testified and, in fact, stated just the opposite, that they were all nothing more than co-employees or friends at work. “After taking testimony at this evidentiary proceeding, this Court was convinced that Bashman had investigated his case as much as would have been reasonable and responsible under the circumstances. Additionally, some of the points raised by Merschen, when presented at the hearing, appeared to be totally without basis and invalid. The very witnesses he claimed to have been so necessary added absolutely nothing to his case. “Once again, Bashman’s assertion that the case simply boiled down to a one-on-one confrontation in which credibility would be a factor was an absolutely accurate assessment of this situation. “Upon a further review of the entire record, this Court was convinced that not only was Defendant guilty beyond a reasonable doubt of the crimes charged, but that there were no prejudicial or reversible errors requiring a new trial. Further, from the evidentiary hearing, this Court was convinced that trial counsel was not ineffective in assisting — 395 — Merschen in the defense of his case. Accordingly, the sentence imposed should stand.” Lower ct. op. at 1-7. Judgment of sentence affirmed. MONTEMURO, J., files a dissenting opinion. Footnotes [1] Brief for Appellee at 1-3.