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COMMONWEALTH PENNSYLVANIA v. JOSEPH RAMIREZ (09/21/79)

filed: September 21, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH RAMIREZ, APPELLANT



Nos. 91 and 92 Special Transfer Docket Appeal (in forma pauperis) from Judgments of Sentence of the Court of Common Pleas, Criminal, of Philadelphia, at Nos. 1585 and 1586 April Term, 1976

COUNSEL

Michael L. Levy, Philadelphia, for appellant.

Stephen S. Seeling, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Montgomery, O'Brien and Honeyman, JJ.*fn*

Author: O'brien

[ 269 Pa. Super. Page 602]

Appellant, Joseph Ramirez, was tried by a jury and convicted of murder of the first degree and weapons offenses. Post-verdict motions were denied and appellant was sentenced to life imprisonment for the murder conviction with a concurrent two and one-half to five year sentence for the weapons violation. This direct appeal followed.

Appellant first argues that the Commonwealth failed to meet its burden in disproving self-defense beyond a reasonable doubt. The facts are as follows.

Appellant and the victim, Raleigh Rucker, were both dating the same woman, one Serita Willmore. Appellant was entering Ms. Willmore's apartment building when he was accosted by the victim. Because portions of appellant's

[ 269 Pa. Super. Page 603]

    skull were missing as a result of a shooting unrelated to this incident, he had been informed that a blow to his head could easily result in his death. Appellant, who had been informed that the victim was usually armed, pulled his own gun in an attempt to persuade the victim to let him alone. When the victim backed off, appellant put the gun back in his pocket. The victim then grabbed a club. Being fearful of a blow to the head, appellant drew his gun and shot and killed the victim.

In Commonwealth v. Eberle, 474 Pa. 548, 559, 379 A.2d 90, 93 (1977), the court stated:

"The prosecution therefore must establish beyond a reasonable doubt that the defendant was not acting in self-defense. To meet this burden, the evidence must establish at least one of the following beyond a reasonable doubt:

"(1) that the defendant did not reasonably believe he was in danger of death or serious bodily injury,

"(2) that the defendant provoked the use of force, or,

"(3) that the defendant had a duty to retreat, and that retreat was possible with complete safety.

"Establishment beyond a reasonable doubt of any one of these three elements will insulate the conviction from a defense challenge to the sufficiency of the evidence in a case where self-protection is at issue."

In the instant case, the Commonwealth was able to prove that appellant was not "free from fault in provoking . . . the difficulty which resulted in the killing." Commonwealth v. Nau, 473 Pa. 1, 6, 373 A.2d 449, 451 (1977). Such proof came from appellant's own statement that he originally pulled his pistol in an attempt to persuade the victim to let him alone. Appellant's argument is thus without merit.

Appellant next argues that he was denied effective assistance of counsel when his trial attorney failed to include an issue concerning the court's cross-examination of appellant in written post-verdict motions. During the trial, the following

[ 269 Pa. Super. Page 604]

    exchange occurred between the trial ...


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