No. 65 January Term, 1979, Appeals from the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia, imposed on Information Nos. 1263 and 1265 March Session, 1978.
David M. McGlaughlin, Norristown (court-appointed), for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Alan Sacks, Philadelphia, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.
Appellant, Tyrone Durrant, brings this direct appeal from judgments of sentence imposed after a non-jury trial, of two to twenty years on conviction for murder of the third degree and one to five years on conviction for possession of an instrument of crime, the sentences to run consecutively. The charges arose out of the March 3, 1978 beating death of James Oliver, in a pool room in Philadelphia. The appeal on the conviction for possession of instruments of crime was taken to Superior Court and certified to this Court for disposition.
First, it is to be noted appellant raises all of his claims in the context of a challenge to prior appellate counsel's effectiveness. First appellate counsel filed an Anders style brief and petitioned to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We granted his petition and new appellate counsel was appointed to represent appellant on this same direct appeal. This is appellant's first appeal, and present counsel provides appellant's first representation on appeal. Layered claims of ineffectiveness are required only where intervening counsel's stewardship has effected a waiver of some underlying
claim. Technically, no challenge to prior appellate counsel's representation need be raised as prior counsel's action effected no waiver. We have ignored the challenge to the quality of the advocacy of prior appellate counsel and simply addressed the underlying claims.
Appellant challenges the sufficiency of the evidence. Reviewing the evidence on which the finder of fact could have based its verdict, in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom, the evidence shows: Prior to the altercation resulting in Oliver's death, Oliver and appellant had been involved in another fight, as witness Stephan English testified appellant had told him, "[Oliver] might have won the fight but I am going to get him back." On the evening of the assault, Oliver had accompanied his cousin to a store which was situated about one-half block from the pool room where the assault took place. Oliver left the store, saying he was going home, but returned shortly thereafter appearing to be in some pain. Instead of going home when he left the store, Oliver had walked to the pool room. As soon as he entered, appellant began swinging at Oliver with a cue stick. An eyewitness testified appellant hit Oliver three or four times with the stick, until the stick broke. Then appellant obtained another cue stick and hit Oliver three or four more times with the second stick. Appellant's statement to the police contained the following account:
I grabbed the first thing near to me. It was a pool stick that I had in my hand. That's when I hit him. I was swinging at his shoulder to try to hit the arm that he had [in a prior altercation] tried to stab me with. He went down, but he got up again. Then I really panicked. I was ready to leave after I hit him the first time, but it scared the hell out of me when he got up. He was standing right in ...