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COMMONWEALTH PENNSYLVANIA v. THOMASINE TYSON (03/19/87)

submitted: March 19, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMASINE TYSON, APPELLANT



Appeal from the Order entered March 14, 1986, in the Court of Common Pleas of Allegheny County, Criminal Division, at No. 8507391A.

COUNSEL

Melaine S. Rothey, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Rowley, Del Sole and Tamilia, JJ.

Author: Del Sole

[ 363 Pa. Super. Page 382]

Appellant, Thomasine Tyson, was charged with aggravated assault and Violation of the Uniform Firearms Act (VUFA). Following a jury trial, she was found guilty of all charges. Appellant was sentenced to a mandatory minimum term of imprisonment of five (5) to ten (10) years for the aggravated assault conviction (18 Pa.C.S.A. ยง 2702(a)(1)), and a concurrent term of two (2) years to five (5) years for the VUFA violation. A timely notice of appeal was filed by the public defender's office which was appointed to represent Appellant in this appeal.

After two sharply contradictory renditions of the events leading up to the charges, the facts as determined by the jury can be summarized as follows. Lorenzo Jones, the victim, was shot in the leg and stomach by the defendant, Thomasine Tyson, on June 8, 1986. The parties had been romantically involved some four years earlier, and their child at the time of the shooting was approximately four years old. On the date in question, the victim went to the home of Gloria Daniels looking for Appellant and his son. Ms. Daniels and Ms. Tyson were in an automobile in front of the house. Jones received permission from Ms. Tyson to go and see the child, who was asleep upstairs. When Jones checked the boy he noticed he had wet himself and woke him in order to clean him. Appellant and Ms. Daniels returned home shortly thereafter and when Jones informed Appellant that he was taking the boy home to care for him a struggle ensued. Jones finally made his way out with the boy and proceeded to walk towards his house carrying the child and pushing his ten speed bike.

After a few blocks, Appellant and Ms. Daniels pulled up in a car. Appellant got out of the car and was carrying a gun. Jones walked toward her with the boy in his arms. He asked her what the gun was for and she stated she wanted the child back. When Jones reiterated his intention to take the boy home and "clean him up," Appellant shot him in the leg. After he put the child down, Appellant shot him again in the stomach.

[ 363 Pa. Super. Page 383]

Ms. Daniels grabbed the boy and she and Appellant got into the car. Before they could leave the scene, the police arrived and Appellant was arrested.

The sole issue before us is whether trial counsel was ineffective. The specific allegations of ineffectiveness are: (1) failing to preserve for appellate review the challenge to the sufficiency of the evidence; (2) failing to present expert testimony regarding the "battered woman's syndrome"; and (3) failing to request a jury instruction regarding the significance of prior violent acts of the victim.

Pennsylvania law regarding ineffective assistance of counsel is well documented. The process to be utilized is a three-pronged analysis consisting first of a determination of whether the issue underlying the ineffectiveness claim is of arguable merit. The second prong evaluates whether the course chosen by counsel had some reasonable basis aimed at promoting the Appellant's interests, and the third prong requires the Appellant to establish that the ineffectiveness so prejudiced his case that it is likely that the result would reasonably have been different absent the errors. Commonwealth v. Brandt, 353 Pa. Super. 250, 509 A.2d 872 (1986); citing Commonwealth v. Pierce, 345 Pa. Super. 324, 498 A.2d 423 (1985). Throughout this process, the law presumes effective counsel, and the Appellant has the burden of proving ineffectiveness. Commonwealth v. Brandt, supra.

In the present case, trial counsel filed a Motion in Arrest of Judgment and for a New Trial containing nothing more than a boilerplate general allegation regarding the sufficiency of the evidence. Since trial counsel failed to elaborate on the specifics of the insufficiency claim, he failed to preserve the issue for appellate review. Commonwealth v. Holmes, 315 Pa. Super. 256, 461 A.2d 1268 (1973). However, as the following will show, ...


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