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COMMONWEALTH PENNSYLVANIA v. JAMES MERSCHEN (02/15/85)

filed: February 15, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES MERSCHEN, APPELLANT



No. 259 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 262-264 April Term 1978.

COUNSEL

Paul G. Hughes, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Montemuro and Montgomery, JJ. Montemuro, J., files a dissenting opinion.

Author: Wickersham

[ 340 Pa. Super. Page 388]

On February 24, 1978, police arrested appellant, James Merschen and charged him with aggravated assault, possession of an instrument of crime and unlawfully carrying a firearm without a license, Information Nos. 262-264, April Term, 1978. Those charges arose out of the shooting of Arthur Hoffman by appellant on February 24, 1978 at approximately 4:15 p.m. in the City of Philadelphia where both men were employed. Immediately after the shooting,

[ 340 Pa. Super. Page 389]

Mr. Hoffman was taken to the Hospital of the University of Pennsylvania where he was admitted in guarded condition and treated for a gunshot wound of the abdomen. Following surgery Mr. Hoffman remained in the hospital three days and thereafter required continued outpatient treatment for permanent disability resulting from the shooting (N.T. Sentencing 1/10/79 at 14).

Appellant was tried before the Honorable Marvin R. Halbert of the Court of Common Pleas, Philadelphia County, sitting without a jury on June 29, 1978. Appellant did not deny shooting the victim; he instead claimed that he had acted in self-defense. Judge Halbert found appellant guilty of the above charges. He rejected appellant's claim of self-defense, holding that while appellant may have believed he was acting in self-defense, the belief was unreasonable (Lower ct. op., 2/25/83 at 4). On January 10, 1979, after denying post-verdict motions, Judge Halbert sentenced appellant to a term of one week to twenty-three months imprisonment in the Forensic Unit of the Philadelphia County Prison with psychiatric supervision of probation for aggravated assault, a consecutive one year probation with psychiatric supervision for possessing an instrument of crime and a concurrent one year probationary period for carrying a firearm without a license. (Appellant served ten days imprisonment and was thereafter released on probation). Appellant was, in addition, ordered to pay $1500 restitution to the victim.

Appellant appealed from the judgment of sentence. On appeal he questioned the effectiveness of his trial counsel. Our court granted appellant's petition for remand for an evidentiary hearing. Judge Halbert heard evidence on the effectiveness of trial counsel on March 13 and October 30, 1980. By opinion dated February 25, 1983, Judge Halbert denied relief, holding that appellant had received effective representation. Appellant appeals, seeking a new trial or discharge for ineffective assistance of counsel.*fn1

Appellant raises the following question on appeal:

[ 340 Pa. Super. Page 390]

Did Defendant have the effective assistance of counsel at trial where his lawyer failed to present available hospital records that would have bolstered Defendant's claim he was injured by the complainant and was thus acting in self-defense when he shot the complainant; where his lawyer failed to interview a possible eyewitness to the incident, who is now deceased; and where his lawyer failed to present other evidence which would have cast a shadow on the complainant's credibility?

Brief for Appellant at 3.

Based upon our review of the record, briefs of counsel and applicable law, we affirm. The opinion of the Judge Halbert, dated February 25, 1983, has appropriately dealt with the issue raised. As Judge Halbert wrote:

"This is an appeal from this Court's denial of the Defendant's Post-Trial Motions and from its imposition of sentence of one week to twenty-three months incarceration at the Forensic Unit of Philadelphia County Prison, to be followed by one year probation. The Defendant, after being found guilty by this Court sitting without a jury on the charges of aggravated assault, possession of an instrument of crime, and carrying a firearm on a public street without a license, filed this appeal. One of the issues raised on appeal by Defendant's attorney, who was not the same attorney who represented him at trial, was that of ineffective assistance of counsel at trial. Accordingly, the file was remanded to this Court for an evidentiary hearing on the ineffective assistance claim.

"The case in chief was short and the facts were relatively simple. On February 24, 1978, at about 4:00 P.M., the Defendant, James Merschen, was an employee of the City of Philadelphia working as a foreman in a garage located in a City facility on Delaware Avenue. At about that time, another employee, a maintenance mechanic, Arthur Hoffman, the complainant in this case, approached Merschen and told him that a door was to be open because it was a fire hazard. Merschen's version of the conversation, however, was different, and allegedly involved threats by Hoffman

[ 340 Pa. Super. Page 391]

    to Merschen. In any event, an argument ensued, and Hoffman began to pursue or follow Merschen from work area to work area at this facility. The exact nature of the argument did not appear to be particularly relevant, since at one point Merschen suddenly turned towards Hoffman, pulled a gun out which had been concealed on his person, and fired it at Hoffman. The bullet struck Hoffman in the lower left side near the abdomen. Hoffman fled the work area, clutching his side from which blood was pouring. He was taken to the hospital, and was in the intensive care unit for one and one-half days, and in the hospital for three days in all.

"Merschen took the stand in his own defense, and tried to raise the issue of self-defense. He stated that Hoffman had threatened him in the past, and on the day in question, threatened to 'bash my head in.' He further testified that Hoffman kept approaching him, and he turned away and tried to walk away from him, but Hoffman continued to follow. He stated that Hoffman was carrying a bag with a heavy object in it and an umbrella. As he continued to retreat from Hoffman, he felt a sharp pain in his leg, and as he turned around, he claimed to see Hoffman raising ...


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