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COMMONWEALTH PENNSYLVANIA v. ALEXANDER ROBERT FRASER (07/18/86)

filed: July 18, 1986.

COMMONWEALTH OF PENNSYLVANIA APPELLEE
v.
ALEXANDER ROBERT FRASER, APPELLANT



Appeal from PCHA August 20, 1985, Court of Common Pleas, Criminal Division, Dauphin County No. 1698 C.D. 1977.

Cavanaugh, Watkins and Lipez, JJ.

MEMORANDUM:

Appellant Alexander Robert Fraser was convicted by a jury of first degree murder in connection with the stabbing death of James Kalafut, which occurred at the Penn National Race Track in Harrisburg on September 30, 1977. Appellant was sentenced to a term of life imprisonment, and now appeals from the judgment of sentence, raising seven allegations of reversible error. We find these allegations to be meritless, and we affirm the judgment of sentence.

This appeal is taken nunc pro tunc because of the following circumstances. After appellant's jury trial and conviction, during which he was represented by private counsel, the Dauphin County public defender's office took over his representation by court order. Post trial motions were filed and denied, appellant was sentenced, and the public defender filed an appeal to our supreme court. However, the appeal was quashed over a year later on petition by the Commonwealth, after appellant's counsel failed to file a brief. Appellant filed a PCHA petition, and newly-appointed counsel filed a supplemental petition. An evidentiary hearing was held, wherein the court rejected an allegation of ineffectiveness of trial counsel, but granted permission for this appeal to be taken nunc pro tunc due to prior counsel's failure to prosecute appellant's first appeal.

Appellant now raises three allegations of ineffectiveness of trial counsel, three allegations of trial court error, and also challenges the sufficiency of the evidence. We will first discuss the latter claim, keeping in mind that we must view the evidence and all reasonable inferences therefrom in a light favorable to the Commonwealth, in order to determine whether the evidence is sufficient to support the verdict. Commonwealth v. Brown, 336 Pa. Super. 628, 486 A.2d 441 (1984).

The testimony at trial established that, on the evening of the stabbing, the victim and appellant, both grooms employed by different horse trainers, were having a discussion regarding a horse. They walked to an area beside the track and grandstand, where several of the witnesses were sitting and talking. An argument ensued between the two, which turned into a scuffle. The victim, who was visibly intoxicated, threw a punch at appellant but missed him. Losing his balance, the victim fell forward toward appellant, grabbing appellant's shoulders to keep from falling. Appellant pushed the victim away, and the victim stumbled and fell to the ground on his back, hitting his head on the ground. Several witnesses testified that, after the victim fell, they saw a knife in appellant's hand. Appellant kicked the victim in the head several times while the victim was lying on the ground. The victim did not move; appellant hesitated a moment, then plunged the knife into the victim's chest. Appellant fled and was apprehended by the police early the next morning.

Appellant attempted to establish that he acted in self defense. He testified that after watching a race that evening, he went to the area next to the grandstand and sat on top of a wall there. The victim approached him, cursed at him and pulled appellant off of the wall. Appellant testified that he began to walk away from the victim, but the victim grabbed him by the shoulders and spun him around. The victim then started punching him, according to appellant, and appellant pushed the victim away. Appellant's testimony was that it was the victim who pulled out the knife and tried to stab appellant. Appellant stated that, during the struggle, the victim was stabbed while appellant was defending himself.

We find that the evidence was indeed sufficient to support the verdict. The evidence introduced by the Commonwealth tended to show that the victim was not the aggressor, particularly when he was lying on the ground motionless and unarmed. There was enough evidence for the jury to conclude that, before appellant stabbed the victim, he had formed the specific intent necessary to constitute first degree murder. Furthermore, the jury was free to disbelieve appellant's assertion of self defense, particularly when it was not corroborated by any of the eyewitnesses' testimony. Therefore, appellant's claim of insufficient evidence cannot succeed.

Appellant raises three instances of alleged ineffective assistance of counsel. Initially, he claims that trial counsel was ineffective in failing to cross examine the Commonwealth's medical expert concerning any findings of bruises on the victim's head. He argues that, to support his defense of self-defense, trial counsel should have attempted to establish that the victim was not kicked in the head as appellant testified.

We do not find that counsel's failure to question the medical witness as to bruises on the victim's head constituted ineffectiveness. Counsel clearly had a reasonable basis for his actions which was designed to effectuate appellant's interests. Commonwealth v. Howard, 324 Pa. Super. 443, 471 A.2d 1239 (1984). First, he had no way of knowing whether the answers to his questions would have shown that appellant was acting in self-defense. Any evidence of bruises would have tended to prove that appellant did kick the victim in the head, as eyewitnesses testified. This certainly would not be helpful to appellant's defense. Additionally, appellant makes no showing that he was prejudiced by defense counsel's actions. Commonwealth v. Litzenberger, 333 Pa. Super. 471, 482 A.2d 968 (1984). Therefore, this allegation is without merit.

Appellant next asserts that trial counsel was ineffective in failing to object to a reference to appellant's failure to give police a written statement. After appellant was apprehended by the police, he was informed of his constitutional rights. He then proceeded to give the officers an oral statement, asserting self-defense. He later refused to give a written statement. However, this was not brought out by the prosecution, but by defense counsel, while one of the police officers was being questioned as to the contents of the oral statement:

Q. Did he relate to you what happened at that time?

A. Yes sir. He gave me a brief ...


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