No. 558 April Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, No. CC7804742A.
Diane Barr Quinlan, Pittsburgh, for appellant.
Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, President Judge, and Montgomery and Lipez, JJ.
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This is an appeal from a conviction in the Court of Common Pleas of Allegheny County for aggravated assault. Crimes Code, 18 Pa.C.S. § 2702(a)(1). Appellant, Ms. Sirianni, contends inter alia that the court below erred in refusing her defense counsel's request to instruct the jury on simple assault, 18 Pa.C.S. § 2701(a)(1), which is a lesser included offense of aggravated assault with which Ms. Sirianni was charged and convicted, and that she was denied her constitutional right to the effective assistance of counsel.*fn1 For the
[ 286 Pa. Super. Page 179]
reasons hereinafter discussed, we affirm the decision of the lower court with respect to the jury instructions, but vacate and remand the case for an evidentiary hearing to determine the ineffectiveness issue.
Appellant, Ms. Sirianni, and the victim, Ms. McKelvy, were social acquaintances who had known each other for approximately two years. About six weeks prior to the incident in question, Ms. Sirianni and Ms. McKelvy attended the wedding reception of a mutual friend at which time they had an argument concerning their personal relationships with other people who were also in attendance at the wedding. The following day Ms. Sirianni telephoned the victim and told her that the next time she saw her, Ms. McKelvy would be dead. The victim did not see or hear from Ms. Sirianni again until May 25, 1978, the night of the crime. On that night, Ms. McKelvy was returning home at about 2:30 a. m. when she noticed another car pull up behind her. When Ms. McKelvy got out of her car, Ms. Sirianni did likewise and approached the victim expressing a desire to talk to her. Ms. McKelvy told Ms. Sirianni that she did not want to talk to her. At this point Ms. McKelvy tried to get back into her car but Ms. Sirianni followed her around the car until they were only several feet apart. Ms. Sirianni then pulled out a gun and fired point-blank at Ms. McKelvy striking her in the right foreman. The victim fell to the ground and Ms. Sirianni fired another shot barely missing the victim and striking the asphalt only inches from the victim's hand which she had held up to her head. Ms. Sirianni then went to her car and drove away, whereupon Ms. McKelvy received emergency medical treatment for the two lacerations on her right forearm.
[ 286 Pa. Super. Page 180]
In connection with this shooting Ms. Sirianni was charged with criminal attempt (attempted murder) and aggravated assault. At trial, the judge refused defense counsel's request to charge the jury on simple assault in addition to the other crimes charged. The jury then found Ms. Sirianni guilty of aggravated assault, but not guilty of criminal attempt. Ms. Sirianni subsequently was sentenced to a term of two to ten years at the Community Treatment Center in order to treat her psychological problems. This appeal follows.
Concerning Ms. Sirianni's first allegation of error, we note that a defendant is entitled to a jury instruction on a lesser included offense upon his or her request only if there is evidence in the record "from whatever source," which makes it "rational for the jury to render a verdict of not guilty of the greater offense but guilty of the lesser." Commonwealth v. Wilds, 240 Pa. Super. 278, 287-88, 362 A.2d 273, 278 (1976). See also Commonwealth v. White, 490 Pa. 179, 183, 415 A.2d 399, 402 (1980); Commonwealth v. Williams, 490 Pa. 187, 190, 415 A.2d 403, 404 (1980). In the information filed against Ms. Sirianni, the District Attorney charged her with aggravated assault as well as attempted murder. The assault charge upon which she was convicted reads as follows:
The District Attorney of Allegheny County by this information charges that on (or about) May 25, 1978 in the said County of Allegheny Rosemary Sirianni hereinafter called actor, did ...