Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal, at No. 3400/1983.
James P. McEvilly, Jr., Feasterville, for appellant.
Stephen B. Harris, Assistant District Attorney, Warrington, for Com., appellee.
Rowley, Montemuro and Kelly, JJ. Kelly, J., concurs in the result.
[ 355 Pa. Super. Page 47]
This appeal presents multiple claims alleging ineffectiveness of trial counsel, errors in the court's charge to the jury, the unconstitutionality of section 9712 of the Mandatory Minimum Sentencing Act,*fn1 and error in the court's refusal to order disclosure to the defense of certain notes made by the complainant during the trial.
Appellant, Kathleen Ehrsam, was charged with attempted homicide,*fn2 aggravated assault,*fn3 simple assault,*fn4 recklessly
[ 355 Pa. Super. Page 48]
endangering another person,*fn5 and possession of an instrument of crime.*fn6 She was tried before a jury and, on December 15, 1983, was found guilty of aggravated assault, simple assault, recklessly endangering another person and possession of an instrument of crime. Following the denial of post-verdict motions, appellant was sentenced to a term of imprisonment of five to ten years. Thereafter, appellant filed a timely motion for reconsideration of sentence, which was denied. This appeal followed.
The trial court correctly summarized the pertinent facts in this case as follows:
On July 3, 1983, Andrew Woehrel was shot by defendant [appellant] at a rental property owned by Woehrel. The property, which was located in Kintnersville, Bucks County, Pennsylvania, had been rented to defendant and her husband, Edwin Ehrsam, and their family for a period of approximately one year prior to the incident. The Ehrsams had fallen behind in their rent payments and had been advised by Woehrel in May, 1983 that he wanted to obtain new tenants by July, 1983. The Ehrsams had indicated to Woehrel that they would vacate the premises by July 1, 1983. When the Ehrsams did not vacate the premises as promised, Woehrel offered to help them move. The Ehrsams said they would discuss it and get back to him.
On July 3, 1983, not having received a response to his offer, Woehrel drove to the rented property at noontime to discuss the situation. A heated argument ensued between Woehrel, Edwin Ehrsam and defendant with the Ehrsams telling Woehrel they would not leave voluntarily and that Woehrel would have to evict them. Defendant threatened to call the police. Woehrel offered to assist the Ehrsams monetarily, and by allowing them to camp on his other property which was a bar located nearby. Edwin Ehrsam promised to get back to him later that day.
[ 355 Pa. Super. Page 49]
That afternoon, Woehrel asked his son, Mark, and Mark's friend, Paul McBride, to stop by the Ehrsams to see whether they had decided to leave. When he arrived, Mark discussed the situation with defendant's husband. Defendant thereafter accosted Mark and Paul and threatened to shoot them if they didn't get off the porch.
Meanwhile, Woehrel had asked a friend, Vic Jones, to accompany him to the Ehrsams. Woehrel proposed that Jones impersonate a prospective tenant for the property. Jones refused, but did agree to go with Woehrel to discuss the situation with the Ehrsams again and to offer them the use of his van in moving. Jones owned rental properties and had prior experience in handling recalcitrant tenants.
Woehrel and Jones drove to the Ehrsams in Woehrel's car and parked it next to hedgerows in front of the house. Woehrel testified that Jones knocked on the door, and then he heard Jones yell "Hey, what are you doing?" Jones then ran to the car holding a shotgun which he threw in the backseat. [Jones testified at trial that he had grabbed the shotgun from appellant's husband.] Defendant and her husband were on the porch of the house. A scuffle ensued where defendant and her husband attacked Jones and attempted to regain the shotgun. Woehrel then saw an individual, later identified as defendant's brother, Ted Praul, point a .22 rifle out of a window and shoot at the car tires. Praul then left the house and threatened to blow Woehrel's head off if the shotgun wasn't returned. Defendant then took the shotgun into the house.
Woehrel got out of the car to help Jones. As he approached the house, defendant came out of the house onto the porch pointing the .22 rifle at Woehrel. Defendant threatened to shoot Woehrel and then without further warning shot him. The bullet struck Woehrel in the side then travelled to his spine. Jones testified that he heard Woehrel cry "Oh, I'm shot, Vic, I'm shot" and then he saw Woehrel lying on the ground in front of the porch.
[ 355 Pa. Super. Page 50]
The result of the gunshot wound paralyzed Woehrel from the waist down and necessitated lengthy hospitalization and rehabilitation treatments.
Trial court's opinion at 1-4.
Appellant's version was somewhat different. While not denying that she had shot Woehrel, appellant testified that Woehrel was in the dining room inside the house when the shooting occurred. According to appellant, Jones and Woehrel forced their way into the house and in an ensuing scuffle her husband ended up lying on the floor with Woehrel standing over him pointing a shotgun at her husband's chest. Appellant testified that, after she observed Woehrel squeeze the trigger of the shotgun, she shot him with a .22 caliber rifle. She stated that Woehrel fell back against the front door, staggered a few steps onto the porch, and then fell to the ground. N.T. December 14, 1983, at 360-363.
As we indicated above, appellant raises the following claims on appeal: (1) defense counsel was ineffective; (2) the court erred in charging the jury that appellant had a duty to retreat; (3) the court erred in failing to charge the jury that the house's front porch was part of the dwelling; (4) the court erred in failing to charge the jury that a landlord does not have a right to remain on leased property against the wishes of the lessee; (5) section 9712 of the Mandatory Minimum Sentencing Act is unconstitutional and; (6) the court erred in refusing to order the Commonwealth to disclose to the defense the contents of certain notes which the victim had made during the trial.
INEFFECTIVENESS OF TRIAL COUNSEL
Appellant presents multiple claims of defense counsel's ineffectiveness, which we will consider seriatim.
When reviewing the effectiveness of counsel, the threshold inquiry is whether the issue/argument/tactic which counsel has foregone, and which forms the basis for the assertion ...