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COMMONWEALTH PENNSYLVANIA v. JAMES L. SMITH (07/02/81)

decided: July 2, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES L. SMITH, APPELLANT



No. 80-1-125, Appeal from order of Court of Common Pleas of Fayette County, PA, Criminal Division at No. 1 of 1975, Dated May 15, 1980, Denying Defendant's Post Conviction Hearing Petition

COUNSEL

Richard H. Lindner, Uniontown, for appellant.

Gerald R. Solomon, Dist. Atty., Uniontown, for appellee.

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

Author: Wilkinson

[ 494 Pa. Page 295]

OPINION OF THE COURT

This is an appeal from an order of the Court of Common Pleas of Fayette County after a hearing, dismissing appellant's Post Conviction Hearing Act (PCHA) petition.

Appellant was charged, along with three co-defendants, with two counts of criminal homicide. After his separate trial appellant was convicted by a jury of murder of the first degree and murder of the third degree. This Court affirmed the judgments of sentence. Commonwealth v. Smith, 480 Pa. 524, 391 A.2d 1009 (1978). The facts were set forth by Mr. Justice Nix in Smith, id., 480 Pa. at 527, 391 A.2d at 1010.

On December 15, 1974 Fant, Rodgers and Collins were at a nightclub from which Fant was ejected as a result of an altercation at the bar. Thereafter a scuffle broke out in the parking lot and Bruce Fisher, the nightclub owner, sprayed mace into the group to restore order. As Fant, Rodgers and Collins were leaving they announced they would return. Shortly thereafter these three, accompanied by appellant, returned to the parking lot. Fant was carrying a rifle and appellant a hand gun. Fant yelled, "Who do I shoot?" to the persons in the parking lot, and the four men entered the nightclub through the front door. Once inside, appellant asked, "Which one is Bruce, where is Bruce?" Bruce Fisher approached the group and appellant said to him, "What are you doing beating on my brother?" Fisher was then struck on the head with a beer bottle by Rodgers. According to the uncontradicted testimony of one witness, during this time the appellant was waving his pistol around as if to cover Fant, who was holding the rifle.

As Fisher turned and walked away from the group, Fant brought his rifle up to waist level and fired, striking Fisher in the back and killing him almost instantly. Fant fired several other shots, one of which struck and killed John Shlosky, a patron, in the rear of the bar. As Fant was firing his rifle, appellant who stood beside him, fired

[ 494 Pa. Page 296]

    his revolver several times in the nightclub, not hitting either Fisher or Shlosky. One or two other patrons of the lounge were injured by gunfire. A .38 caliber revolver slug was found waist high in the side wall panelling of the lounge.

The original PCHA petition and an amended petition raised numerous questions, only two of which were pursued at the PCHA hearing. Those two questions are again raised in this appeal and shall be addressed hereinafter. By means of a pro se supplemental brief filed more than three weeks after the PCHA hearing, appellant additionally contends that he was denied effective assistance of counsel in that his trial counsel failed to probe, develop and present evidence of appellant's alleged intoxication at the time of the incident. Not only is this argument deflated by ...


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