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COMMONWEALTH PENNSYLVANIA v. ROBERT D. MCCANN (07/30/82)

filed: July 30, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT D. MCCANN, APPELLANT



No. 718 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Mercer County, Pennsylvania, Criminal Division at No. 528 - 1979.

COUNSEL

Richard W. Epstein, Sharon, for appellant.

Charles S. Hersh, Assistant District Attorney, Mercer, for the Commonwealth, appellee.

Brosky, Cirillo and Popovich, JJ. Cirillo, J., files a dissenting opinion.

Author: Popovich

[ 302 Pa. Super. Page 443]

This is a direct appeal from a judgment of sentence of not less than five (5) years nor more than ten (10) years, imposed by the trial court after a jury found the appellant, Robert D. McCann, guilty of aggravated assault (18 Pa.C.S.A. ยง 2702).

On appeal, appellant contends that, inter alia, trial counsel was ineffective for failing to request the court to instruct the jury concerning the consequences of returning a verdict of not guilty by reason of insanity.*fn1 We agree and, accordingly, vacate the judgment of sentence and remand for a new trial.

As this Court has stated in the past, in deciding a claim of ineffectiveness, we must initially determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Jennings, 285 Pa. Super. 295, 427 A.2d 231 (1981). Then, if the underlying issue is held to be of arguable merit, we determine whether the

[ 302 Pa. Super. Page 444]

    course taken by counsel had some reasonable basis designed at promoting his client's best interests. Id.

In ascertaining if appellant's assertion is of arguable merit, the Court starts by examining the facts. On December 11, 1979, Mrs. Wilma Cooper was walking home when she was accosted in broad daylight. Miraculously, the victim survived the infliction of some 20 stab wounds to all parts of her body. Shortly after the incident, appellant was picked up near the scene by the police complaining of a knife wound to the leg, which he claimed was sustained in the course of aiding a woman being attacked. To prove his point, appellant took the authorities to where Mrs. Cooper was lying in a pool of blood. The police immediately summoned an ambulance for the victim and then transported the appellant to the hospital. While there, the officer in charge of the investigation was handed a note from one of the ambulance attendants. The note gave a description of the assailant, as told to the writer by the victim, which was strikingly similar to the appellant. As a result, the police located the appellant, advised him of his rights and, shortly thereafter, secured a taped confession. Additionally, the victim selected the appellant's photograph out of an array shown to her while she was recuperating in the hospital.

Prior to trial, appellant's counsel raised the defense of insanity. Accordingly, the trial court directed that the appellant be referred to Warren State Hospital for observation. Test results submitted to the court indicated that the appellant was competent to stand trial.

As conceded by appellate counsel in his brief to this Court, "[t]he only real issue in the case was whether the Appellant was sane at the time of the stabbing." As a consequence thereof, the jury heard testimony proffered by both the defense and the Commonwealth concerning appellant's penchant for violence and sexual perversion. In fact, the sanity issue was broached by the defense through the direct testimony of a Mary Barker, appellant's next door neighbor.

[ 302 Pa. Super. Page 445]

Mrs. Barker recounted how she had observed the appellant engaging in sexual activity with a dog -- once in appellant's home and a couple of times in the yard. Next, Dr. Betty Von Benken, a clinical psychologist in the forensic unit at Warren State Hospital, testified to administering a battery of tests to the appellant which measured intellectual, neurological and personality factors. The witness was able to conclude from the tests that appellant, at times, suffered from anxiety so high that it incapacitated him. The witness went on to report that appellant exhibited "obsessive thinking about rape and stabbing; and even though he knew it was wrong, he couldn't seem to control it." (N.T. 203) Also, the witness admitted that this fantasy did not just occur occasionally, "but it was every ...


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