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COMMONWEALTH PENNSYLVANIA v. WILLIAM J. KERPAN (09/25/85)

decided: September 25, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
WILLIAM J. KERPAN, APPELLANT



Appeal from the Judgment of the Superior Court at No. 1417 Philadelphia 1982, filed June 22, 1984, affirming in part and vacating in part the judgments of sentence of the Court of Common Pleas of Cumberland County at No. 602 Criminal, 1981, filed April 26, 1982, No. 76 M.D. Appeal Dkt. 1984.

COUNSEL

Edward E. Guido, Public Defender, for appellant.

J. Michael Eakin, Dist. Atty., Theodore B. Smith, III, Asst. Dist. Atty., for appellee.

Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., did not participate in the consideration or decision of this case.

Author: Mcdermott

[ 508 Pa. Page 419]

OPINION

Appellant was accused of setting a fire that partially destroyed the building containing his residence and his law office, and of attempting to obtain reimbursement from his insurance company for losses sustained as a result of the fire. A Cumberland County jury convicted him of arson endangering persons,*fn1 arson endangering property,*fn2 and

[ 508 Pa. Page 420]

    attempted theft by deception.*fn3 On appeal, a Superior Court panel affirmed the judgments of sentence on the arson endangering persons and the attempted theft convictions, and vacated the judgment of sentence on the arson endangering property conviction.*fn4 Upon petition we granted allocatur. We now reverse, and remand the case to the Court of Common Pleas of Cumberland County for a new trial.

In this appeal appellant has raised three issues, all under the guise of ineffectiveness: whether trial counsel was ineffective in failing to object to the trial judge's instruction to the jurors that they were permitted to discuss questions with their fellow jurors; whether trial counsel was ineffective in failing to establish the existence of other unsolved arsons in the defendant's community; and whether trial counsel was ineffective in failing to object to a jury instruction which purportedly referred to matters not in evidence.

The law on ineffectiveness is well established in this Commonwealth. In reviewing a defendant's claim of ineffective assistance of counsel, we must first determine whether the issue underlying the complaint is of arguable merit. Thereafter, we must focus on whether the course of action chosen by the defendant's counsel had some reasonable basis designed to effectuate the interests of his client. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 353 (1967). Thus, petitioner's arguments necessarily require a showing that his trial attorney failed to effectively act in the face of trial errors.

[ 508 Pa. Page 421]

The first issue concerns the propriety of the following introductory instruction given the ...


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