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COMMONWEALTH PENNSYLVANIA v. WILMER B. GAY (04/28/80)

decided: April 28, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
WILMER B. GAY, APPELLANT



Nos. 188 January Term, 1978 and 331 January Term, 1979, Appeals from the Order of the Court of Common Pleas, Criminal Trial Division, of Philadelphia, at Nos. 236 and 238 June Term, 1971

COUNSEL

Robert B. Mozenter, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Cynthia H. Severinsen, Asst. Dist. Attys., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Roberts, J., files a concurring opinion.

Author: O'brien

[ 489 Pa. Page 20]

OPINION OF THE COURT

Appellant, Wilmer B. Gay, was convicted of murder of the first degree and aggravated assault and battery in the Court of Common Pleas of Philadelphia. He was sentenced to imprisonment for life for murder and three and one-half to seven years for assault and battery, the sentences to run concurrently. We affirmed the judgment of sentence on direct appeal per curiam, without an opinion, 459 Pa. 567, 330 A.2d 843 (1975).

On January 6, 1977, appellant, now represented by counsel other than trial counsel, filed a petition under the Post Conviction Hearing Act,*fn1 alleging various instances of ineffectiveness of trial and direct-appeal counsel. On July 20, 1977, a hearing was held on appellant's petition. On August 25, 1977, appellant filed an amended petition, alleging three new and entirely different instances of ineffectiveness on

[ 489 Pa. Page 21]

    the part of trial and direct-appeal counsel. On April 4, 1978, the court denied appellant's petition and this appeal followed.

According to the Commonwealth's evidence, appellant and one Vaughan Stockton were at a party at the home of his estranged wife, Falivia Gay, on April 24, 1971. An exchange took place in which appellant accused Stockton of being involved with his wife and invited him to leave the party. Appellant, his wife, and Stockton all went outside. Further words were exchanged and then appellant took out a gun that he was carrying, shot and wounded Stockton, and chased his wife down the street. Several shots were heard. Appellant's wife was found dead by the police. Appellant contended that Stockton had the gun, that it went off while he and Stockton were struggling with it, and that Stockton then chased him and his wife.

In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), we held that when counsel is alleged to have been ineffective, the reviewing court is to independently review the record and examine counsel's stewardship in light of available alternatives. Counsel is deemed to have been effective once it can be determined that the course of action followed had a reasonable basis designed to effectuate the client's interests. Counsel is not ineffective for failing to assert a nonexistent right. Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974). The burden is on appellant to establish his right to relief. Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976).

The first alleged instance of ineffectiveness that we will discuss is counsel's failure to appeal the trial court's refusal to charge on self-defense. Appellant would have been acting in self-defense if, not being at fault in provoking the incident, he had done the shootings under a reasonable belief that his action was necessary to protect himself from death or serious bodily harm. Commonwealth v. Black, 474 ...


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