No. 35 Harrisburg, 1981, Appeal from the Judgment of Sentence of January 28, 1981, In the Court of Common Pleas of Dauphin County, Criminal Division, No. 918 C.D. 1980.
Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Cercone, President Judge, and Wickersham and Rowley, JJ. Wickersham, J., files a concurring and dissenting statement.
[ 312 Pa. Super. Page 477]
This is a direct appeal by appellant, Charlie Will Clemmons, from a judgment of sentence entered after his conviction by a jury for murder of the first degree.*fn1 Post-verdict motions were denied and appellant was sentenced to life imprisonment. Now, on appeal, appellant is represented for the first time by counsel different from trial counsel. He presents for our review two challenges to the sufficiency of the evidence and nine allegations of ineffectiveness of trial counsel. We are able to reach the merits of the sufficiency arguments and two of the ineffectiveness contentions on the record as it presently exists. However, we vacate the judgment of sentence and remand this case for the conducting of an evidentiary hearing on the question of trial counsel's ineffectiveness as outlined by appellant in arguments three and four.*fn2
The instant appeal arose out of the shotgun killing of one Dale Hershey by appellant on June 8, 1980. The shooting
[ 312 Pa. Super. Page 478]
occurred on interstate highway 81 near Harrisburg. By his own admission, it was the act of appellant, age thirty-one. Appellant was a long distance truck driver of large tractor trailer trucks. He was traveling north on I-81. Rose Marie Swelfer, the girlfriend of the victim, testified that the truck which appellant was driving made a sharp return to the lane in which the victim and she were traveling, thereby causing them to veer off the highway. This act upset Hershey, the driver, so much so that he activated his C.B. radio and addressed the following to the driver of the offending truck, who happened to be appellant. (There was no evidence that appellant and victim had ever seen each other prior to this incident.) "You son of a bitch, if you don't know how to drive that thing, you pull over and I'll show you how to drive it."
Both vehicles pulled off onto the shoulder of the highway with appellant's truck parked in front of Hershey's. Hershey, the victim, exited his small pick-up truck immediately and walked quickly to the cab of appellant's tractor trailer. Only Swelfer, the deceased Hershey's girlfriend, then witnessed both men walk to the back of the tractor trailer. She stated that Hershey's hands were at his sides and that the two men were exchanging remarks, but that she was unable to hear what they said. She then saw appellant lift a shotgun which he had carried from the cab, point it at Hershey, and fire. Hershey died almost immediately as a result of a wound in the lower neck area.
Appellant walked over to Swelfer, laid the gun in the grass, put his hands in the air "as if to say I'm not going to hurt you."
[ 312 Pa. Super. Page 479]
Passers-by stopped. When asked by one Phillip Kockler, a retired Pennsylvania State Police Officer, why he shot Hershey, appellant replied, "I told him to stop, he didn't stop and so I shot him." A John Scott testified that he heard appellant say several times, ...