No. 601 PITTSBURGH, 1981, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC 800 2546: 1978.
Paul R. Gettleman, Zelienople, for appellant.
Dara A. DeCourcy, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Hester, McEwen and Johnson, JJ. Johnson, J., concurred in the result.
[ 309 Pa. Super. Page 27]
Appellant was arrested on March 12, 1980, and charged with criminal homicide and violations of the Uniform Firearms Act.*fn1 After a four-day trial, the jury returned a verdict of guilty of both third degree murder and the Uniform Firearms Act violations. The trial judge, upon consideration of motions for a new trial and/or in arrest of judgment, arrested judgment on the Uniform Firearms Act violations, but denied the motions as to the murder conviction. Appellant was thereafter sentenced to a term of imprisonment of not less than seven nor more than eighteen years incarceration.
On this direct appeal, appellant raises but one issue for our review: the alleged ineffectiveness of trial counsel. After close examination of appellant's arguments and the record itself, we hereby deny the relief requested.
In order to properly analyze appellant's argument, it is necessary to reconstruct the events surrounding the crime which appellant admittedly committed. On March 6, 1980, at approximately 11:40 p.m., appellant was sitting at the bar of the Sumpter Hotel in Clairton, Pennsylvania. The victim, Duffy Dreher, entered the bar with two friends, Harry Lueckert and Henry Armstrong. Lueckert had previously threatened appellant's brother, who was married to Lueckert's sister. The victim and his friends were playing pinball when appellant approached and began arguing with Lueckert. The victim attempted to intercede and appellant began arguing with him. Eventually the victim walked away. However, appellant followed him, drew a weapon, and when the victim turned around, shot him in the right eye at close range. Duffy Dreher died immediately.
Appellant is represented on appeal by new counsel and instantly alleges the ineffectiveness of trial counsel in three regards: 1) counsel failed to subpeona a material witness, 2)
[ 309 Pa. Super. Page 28]
counsel failed to demand that the jury deliberations end for the night, and 3) counsel failed to object to certain remarks of the prosecuting attorney in his closing argument.*fn2
The test for establishing the ineffectiveness of counsel, firmly settled in this ...