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COMMONWEALTH PENNSYLVANIA v. FRANK METZGER (08/28/81)

filed: August 28, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
FRANK METZGER, APPELLANT



Nos. 267, 268 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County, No. 4399-A, I and K of 1975.

COUNSEL

Robert Breslin, Jr., Assistant Public Defender, Chester, for appellant.

Sandra L. Gross, Assistant District Attorney, Media, for Commonwealth, appellee.

Wieand, Nix and Wekselman, JJ.*fn*

Author: Wieand

[ 295 Pa. Super. Page 270]

In this direct appeal from the judgment of sentence imposed for murder of the first degree, burglary and conspiracy, appellant contends that his trial counsel was constitutionally ineffective in seven separate instances.*fn1 We disagree and affirm the judgment of sentence.

On September 25, 1974, the remains of Martha Metzger, who had been reported missing from her Delaware County home on August 18, 1974, were found in a field behind a farm house in Farnham, New York. The cause of death was determined to be suffocation and strangulation caused by a cloth which had been stuffed into her mouth and secured with adhesive tape. Her body had been bound with rope, wrapped in bed clothes, covered with plastic and buried in a shallow grave.

[ 295 Pa. Super. Page 271]

Martha Metzger and the appellant, Frank Metzger, had been husband and wife and the parents of four children. They had been separated, however, and after 1971 appellant lived meretriciously with Diane Linda Hamill. In the summer of 1974, appellant and Diane Hamill rented a farm house in Farnham, New York, and began to ready it for the four Metzger children who were then residing with their mother in Pennsylvania. On August 18, 1974, appellant and Diane Hamill drove to Mrs. Metzger's home in Delaware County, Pennsylvania, where they broke into the residence and struck Mrs. Metzger with a flashlight, rendering her unconscious. Mrs. Metzger was then wrapped in a bedsheet; a wash cloth was stuffed in her mouth, causing her to suffocate; and she was carried to appellant's car. The same night appellant returned with his girlfriend, his dead wife and his four children to the farm house in Farnham, New York.

A month later, appellant and Diane Hamill fled, abandoning the farm house and leaving the children alone in a nearby motel. Appellant was not arrested until July 11, 1975, when he was found in Boise, Idaho. On March 29, 1976, he entered a plea of guilty to a general charge of murder. He also waived trial by jury on the burglary and conspiracy charges and agreed that trial should be consolidated with the degree of guilt hearing to be held before the Honorable Clement J. McGovern. After trial, Judge McGovern found appellant guilty of burglary and conspiracy and fixed the degree of guilt as murder in the first degree. In July, 1976, appellant appeared pro se to present a motion to withdraw his guilty plea to murder and a separate motion for the appointment of new counsel. New counsel was appointed, but the motion to withdraw his plea and post-trial motions were unsuccessful, and sentence was imposed.

The standard for evaluating the effectiveness of counsel is clear: we must determine whether the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

[ 295 Pa. Super. Page 272]

Counsel will not be deemed ineffective if the action which he failed to take would have been frivolous or futile. Commonwealth v. Barren, 273 Pa. Super. 492, 417 A.2d 1156 (1979); Commonwealth v. ...


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