decided: April 21, 1982.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
ONDRAY UPSHER, APPELLANT
No. 80-1-134, Appeal from the Judgment of Sentence entered on June 9, 1980, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division at No. CC7906539.
John H. Corbett, Jr., Chief, Appellate Division, Asst. Public Defender, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt Deputy Dist. Atty., Kathryn L. Simpson, Dora A. DeCourcy, Asst. Dist. Attys., Pittsburgh, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.
[ 497 Pa. Page 623]
On November 1, 1979, Robert Houser was stabbed to death by appellant, Ondray Upsher. On March 20, 1980, appellant was convicted by a jury of murder of the third degree. Motions for a new trial and arrest of judgment were denied, and appellant was sentenced to a prison term of seven and one-half to twenty years. This direct appeal followed.
Appellant first contends that the evidence presented at trial by the Commonwealth was insufficient to establish his guilt of third degree murder beyond a reasonable doubt. Specifically, appellant contends that the evidence presented
[ 497 Pa. Page 624]
by the Commonwealth was insufficient to prove that he was not acting in self-defense when he killed Robert Houser.*fn1
When there is any evidence at trial that a killing may have been done in self-defense, the Commonwealth must prove beyond a reasonable doubt at least one of the following: 1) that the defendant did not reasonably believe he was in danger of death or serious bodily injury; 2) that the defendant provoked the use of force; or 3) that the defendant had a duty to retreat, and that retreat was possible with complete safety.*fn2 Commonwealth v. Helm, 485 Pa. 315, 402 A.2d 500 (1979).
On November 1, 1979, at approximately 7:00 P.M., appellant left the company of some friends to proceed home. While taking a shortcut through a field on his way home, appellant was approached by the victim who asked appellant if he had seen anybody in the field having intercourse. Without further discussion, appellant continued through the field towards his home. As he exited the field, appellant warned two acquaintances not to enter the field because "there is an old rapist down there." After procuring some cigarettes and a knife from his home, appellant asked an acquaintance to accompany him back into the field. Before he entered the field, appellant requested the acquaintance to wait by the edge of the field until he returned. Appellant went into the field and was once again confronted by the victim. The two men struggled and appellant stabbed the victim several times, causing his death. The only weapon found at the scene belonged to the appellant.
[ 497 Pa. Page 625]
The evidence and the reasonable inferences therefrom are sufficient to establish beyond a reasonable doubt that appellant was the aggressor, or that he used excessive force to defend himself against an unarmed individual. Consequently, appellant's first contention is without merit.
Next, appellant contends that the testimony of Commonwealth witness, James Hayden, was so unreliable and contradictory that it led to a jury verdict that was based on conjecture. Appellant claims that James Hayden's testimony was wholly unreliable because his testimony was contradicted by appellant and another Commonwealth witness. Appellant further supports this argument by alleging Hayden gave a prior inconsistent statement to police.
In Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976), this Court held that "where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding." However, this rule applies only in those cases where the testimony is so patently unreliable that a verdict of guilt would be based upon pure conjecture. Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978). In Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980), this Court held that contradictions by other witnesses and prior inconsistent statements affect the credibility of the witness and do not render his testimony patently unreliable under the Farquharson standard. Issues of credibility are properly left to the jury for determination. Commonwealth v. Hudson, supra. Consequently, appellant's second contention is without merit.
Finally, appellant contends that trial counsel was ineffective for failing to request a mistrial based on the prosecutor's improper cross-examination of the appellant.*fn3
[ 497 Pa. Page 626]
The test of constitutionally effective assistance of counsel is whether a "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) (emphasis in the original). The initial factor that is considered in applying this standard is whether the matters counsel is charged with failing to competently pursue had arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).
During the course of the prosecutor's cross-examination of appellant, appellant's trial counsel made five objections to the questions asked by the prosecutor, all of which were sustained. Three of trial counsel's objections were sustained on the basis that the prosecutor's questions were argumentative, and two of trial counsel's objections were sustained on the basis that the questions were improperly phrased.*fn4 Furthermore,
[ 497 Pa. Page 627]
at side-bar the trial court commented that the prosecutor's attitude and questions were argumentative.
Although a prosecutor's language may be improper, a new trial is not required unless the "unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict". Commonwealth v. Hoss, 469 Pa. 195, 364 A.2d 1335 (1976). The nature of the questions objected to by appellant's trial counsel were certainly not of the prejudicial nature which would destroy the jury's ability to render a true verdict. Furthermore, since all objections were sustained, every attempt by trial counsel to prevent the prosecutor from pursuing an improper question was successful.
Since appellant's contention that the prosecutor's cross-examination of appellant requires that a new trial be granted is without merit, trial counsel was not ineffective for failing to request a mistrial.
The judgment of sentence is affirmed.