filed: July 18, 1986.
COMMONWEALTH OF PENNSYLVANIA APPELLEE
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.
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 statement.
Q. What did he say happened?
A. Well, he said to me that there had been --
MR. ROWLAND: Excuse me, Your Honor. Is this statement in writing?
THE WITNESSES: No sir.
MR. ROWLAND: Thank you.
This was clearly an attempt by defense counsel to discredit the testimony of the police officer, rather than a reference to appellant's right to remain silent, as suggested by appellant. We again find that this was a reasonable strategy pursued by trial counsel, furthermore, we find that no prejudice resulted from the reference by defense counsel. Therefore, this action did not constitute ineffectivensss.
Appellant's last allegation of ineffectiveness concerns the jury charge. Appellant contends that trial counsel was ineffective in failing to request a point for charge on the use of rebuttal testimony. This issue arises from an incident brought out on cross-examination of appellant. The prosecutor questioned appellant as to an incident which occurred several days before the killing, in which appellant had allegedly pulled a knife on the victim during an argument over a pinball game. Appellant denied that this occurred, however, the Commonwealth called a rebuttal witness who confirmed the incident. Appellant now argues that defense counsel should have requested an instruction that the evidence should only have been considered for impeachment purposes, as to appellant's denial of the incident.
We do not find that trial counsel's failure to request such an instruction constituted ineffective assistance. Although it was brought out in rebuttal, the testimony as to the previous altercation was relevant and admissible, standing on its own, to show appellant's motive, ill will or malice. Commonwealth v. Marcocelli, 271 Pa. Super. 411, 413 A.2d 732, (1979); Commonwealth v. Baker, 466 Pa. 382, 353 A.2d 406 (1976). "Evidence is admissible in rebuttal to contradict that offered by a defendant or his witnesses, even though by doing so the Commonwealth supplies previous omissions from its case in chief." Commonwealth v. Tervalon, 463 Pa. 581, , 345 A.2d 671, 676 (1975). Since the evidence was admissible to show ill will, malice or motive, regardless of when the evidence was introduced; see Commonwealth v. Hickman, 453 Pa. 427, , 309 A.2d 564, 567 (1973), an instruction limiting its admissibility for impeachment purposes only would have been improper. Thus, trial counsel acted properly and did not render ineffective assistance.
Appellant also argues that the trial court erred in several respects. He contends there was error in the overruling of defense objections to questions regarding appellant's failure to turn himself in to the police. The following took place at trial:
Q. Did you ask him why he did not turn himself in to the police?
MR. ROWLAND: Objection, Your Honor.
MR. PUNSHON: It's an admission of guilt.
The court allowed the witness to answer the question. It is recognized by our courts that the conduct of flight is evidence of consciousness of guilt and may form the basis in connection with other proof from which guilt may be inferred. Commonwealth v. Collins, 440 Pa. Super. 368, , 269 A.2d 882, 884 (1970); Commonwealth v. Morgan, 237 Pa. Super. 402, 352 A.2d 85 (1975). Ample evidence was offered during the trial to prove that appellant had fled from the scene of the killing. The testimony of several eyewitnesses indicated that appellant ran away after the victim was stabbed. Additionally, the state trooper who apprehended appellant and placed him under arrest, testified that the appellant was attempting to escape apprehension by hitchhiking out of the area when he was finally tracked down hours after the stabbing. Although the prosecutor's remark that appellant's conduct was an admission of guilt may have been improper, we find no prejudice resulted in light of the above. Therefore, the trial court did not commit reversible error in allowing evidence of appellant's flight.
Appellant next contends that the trial court erred in sustaining the Commonwealth's objection to defense counsel's questions concerning the victim's use of drugs. Appellant argues that the victim's character was in issue because the witness had testified as to the victim's good character. However, we agree with the lower court that only the victim's alleged use of drugs on the day of his death was relevant to a determination of appellant's guilt. Therefore, the trial court properly sustained the Commonwealth's objection to defense inquiries regarding the victim's drug use in general. As for possible drug use on the day of the victim's death, the witness being questioned was not even present at the track that day so he couldn't answer the question. Consequently, the court's sustaining of appellee's objection was harmless error.
Lastly, appellant asserts that the trial court erred in refusing a point for charge requested by defense counsel. The requested instruction was that "a verdict of voluntary manslaughter is strictly within the jury's prerogative even in the absence of provaction and passion." Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974) cert. denied, 419 U.S. 1000 (1974), Commonwealth v. Butcher, 451 Pa. 359, 304 A.2d 150 (1973). However, the lower court properly indicated that although it may give such a charge to the jury, it is not constrained to do so, particularly where there is no such evidence to support the charge. We find, in evaluating the charge in its entirety, Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977) the court adequately instructed the jury on the elements of voluntary manslaughter. Therefore, the court did not err in this respect.
For the foregoing reasons, we find no merit in appellant's claims. Therefore we affirm the judgment of sentence of the lower court.
Judgment of sentence affirmed.
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