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COMMONWEALTH PENNSYLVANIA v. DONALD LUTZ (02/04/81)

decided: February 4, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
DONALD LUTZ, APPELLANT



No. 49 March Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, at No. CC7706216, entered on March 28, 1979.

COUNSEL

John H. Corbett, Jr., Asst. Public Defender, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Roberts

[ 492 Pa. Page 502]

OPINION OF THE COURT

This is an appeal from an order of the Court of Common Pleas of Allegheny County which, after a counseled evidentiary hearing, dismissed a petition for relief under the Post Conviction Hearing Act (PCHA), Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., formerly 19 P.S. § 1180-1 et seq. Appellant Donald Lutz pled guilty to a single count of voluntary manslaughter while standing trial on charges including murder of the first and third degrees. He now contends that his guilty plea was unlawfully induced by the ineffective assistance of guilty plea counsel. The record supports the determination of the PCHA court that appellant's plea was not so induced. We affirm.

I

Appellant was charged with murder of the first degree, murder of the third degree, voluntary manslaughter, and involuntary manslaughter in connection with the death of Robert Van Tassell on September 10, 1977. The victim was killed as a result of stab wounds inflicted by appellant in the course of an altercation between the two men. Appellant has contended that he acted in self-defense. Although the Commonwealth has acknowledged that the victim initiated the altercation by accosting appellant, wielding a belt with a large buckle, and striking appellant several times, the Commonwealth has taken the position that appellant failed to retreat when obliged to do so and instead pursued the victim and stabbed him to death.

Trial testimony before a jury commenced on January 24, 1978. Among those testifying on the Commonwealth's behalf was a friend of appellant's, Phyllis Sadecky, the only eyewitness. Sadecky confirmed that the victim had initiated the altercation by striking appellant as many as four times in the face and other parts of the upper body. According to her testimony, appellant then pulled out a hunting knife he was carrying in his back pocket. After the

[ 492 Pa. Page 503]

    victim had swung the belt and buckle a "couple more" times and struck appellant, appellant started to swing the knife at the victim. Sadecky stated, "I saw [the victim] get slashed a couple times. But the one I saw was when he got stabbed in the chest." Sadecky added that the stab to the chest was a "penetrating" one, inflicted after the first time appellant had swung the knife, and after the victim had begun to move away. On direct examination Sadecky testified:

"Q. . . . You say when Lutz began to swing the knife or to stab with the knife, you say Van ...


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