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COMMONWEALTH PENNSYLVANIA v. IRVIN GASS (04/06/87)

decided: April 6, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
IRVIN GASS, APPELLANT



Appeal from the Order of Superior Court at No. 746 Pittsburgh, 1983, dated December 7, 1984, Affirming the Order of the Court of Common Pleas of Crawford County, Criminal Division, at No. 474 of 1978, entered May 18, 1983. Pa. Superior Ct. , A.2d (1984) (Unreported Opinion)

COUNSEL

M. Dan Mason (Court-appointed), Meadville, for appellant.

John M. Dawson, Dist. Atty., Meadville, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion joined by McDermott and Hutchinson, JJ. Hutchinson, J., files a dissenting opinion joined McDermott, J.

Author: Papadakos

[ 514 Pa. Page 289]

Opinion OF THE COURT

This appeal arises from an incident which occurred on October 19, 1978, at which time Joseph Marzka was killed in the course of an argument with Appellant. Appellant was found guilty of murder of the first degree following a jury trial. He was sentenced to life imprisonment on July 31, 1979. Post-verdict motions were denied and this Court affirmed the judgment of sentence by per curiam opinion on April 10, 1980. Commonwealth v. Gass, 488 Pa. 512, 412 A.2d 882 (1980). Appellant then filed a Petition for Relief Under the Post Conviction Hearing Act,*fn1 which, after an evidentiary hearing on August 21, 1981, was denied by the Court of Common Pleas on May 18, 1983. The Superior Court affirmed the denial of post-conviction relief on December 7, 1984. 339 Pa. Super. 615, 488 A.2d 1163. This appeal followed.

In this appeal, Appellant argues that 1) trial counsel was ineffective in failing to request a specific jury instruction that not guilty by reason of insanity was a possible verdict and an instruction as to the consequences of an acquittal by reason of insanity, and 2) trial counsel was ineffective for failing to object to the use of published articles during the cross-examination of Appellant's expert witness, Dr. Thompson.

When confronted with claims of ineffectiveness, reviewing courts are governed by the standard as set forth by this Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):

Our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the

[ 514 Pa. Page 290]

    record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that the trial counsel's decision had any reasonable basis.

Id., 427 Pa. at 604, 235 A.2d at 352-53. We also noted in Maroney that:

Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8. See also, Commonwealth v. Bandy, 494 Pa. 244, 431 A.2d 240 (1981). The threshold inquiry is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness, was of arguable merit, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), for counsel cannot be considered ineffective for failure to assert a meritless claim. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984). With the Maroney standard in mind, we proceed to Appellant's specific claims of ineffectiveness.

Appellant first asserts that trial counsel was ineffective in failing to request a jury instruction that not guilty by reason of insanity was a possible verdict. Appellant relies on Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), for the proposition that once the issue of insanity has been raised, the court must state in its charge that "not guilty by reason of insanity" is a separate and distinct verdict in the case. Appellant further contends that the jury must be made aware of the meaning ...


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