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COMMONWEALTH PENNSYLVANIA v. JOSEPH FLIS (09/29/87)

submitted: September 29, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH FLIS, APPELLANT



Appeal from the Judgment of Sentence February 20, 1987 in the Court of Common Pleas of Allegheny County, Criminal No. 8608348A.

COUNSEL

David S. Shrager, Pittsburgh, for appellant.

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

Cirillo, President Judge, and Johnson and Montgomery, JJ.

Author: Cirillo

[ 369 Pa. Super. Page 277]

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Allegheny County. We affirm.

Appellant, Joseph Flis, was charged with a single count of arson under 18 Pa.C.S. ยง 3301(a)(1)(i) for allegedly starting a fire on the porch at 508 McClintock Street, Pittsburgh. In so doing, appellant recklessly placed Laura Flis, his sister, in danger of death or bodily injury. On December

[ 369 Pa. Super. Page 27810]

, 1986, appellant proceeded to trial before a jury with the Honorable Robert E. Dauer presiding.

The victim, Laura Flis, testified as to the events she perceived on the night of the alleged arson. She stated that she was looking out the window of her sister's house where she was living at the time, waiting for the arrival of her boyfriend. At about 12:30 a.m., Laura heard rustling noises outside. She looked out the window and saw a shadow. She testified that a person then walked towards the fence from the neighboring yard in a hunched-over manner. At that point she saw the person jump over the fence and approach the side of the house. When the individual entered upon the area of the yard illuminated by the house light, Laura recognized him as her brother. She then saw her brother toss a lighted match onto a sheet on the porch causing the sheet to go up in flames.

In his defense, appellant testified that he had been at home at 541 Ridgewood Street with his father, Adolf Flis, at the time of the arson. Adolf Flis testified likewise.

Five weeks before the arson, the appellant had been stabbed by his sister, Laura Flis, at 541 Ridgewood Street where she had resided at the time. Based on this stabbing, the appellant filed aggravated assault charges against his sister. A preliminary hearing was scheduled for two days after the arson. At the appellant's trial, Laura Flis and the appellant gave varying accounts of how the stabbing occurred. Buttressing his defense, the appellant contended that Laura Flis's identification of him as the perpetrator of the arson was an attempt to get even with the appellant for filing aggravated assault charges against her. In addition, appellant testified that because of his stab wound, he was physically unable to hunch over and walk or jump a fence as Laura Flis testified she saw the individual who set the fire do.

The jury found Joseph Flis guilty of the arson charge. A post-verdict motion for new trial was filed and denied. Subsequently, appellant was sentenced to a term of imprisonment

[ 369 Pa. Super. Page 279]

    of not less than five nor more than ten years. This appeal followed.

Appellant presents three issues for our review: (1) whether the trial court erred in refusing to allow relevant and material testimony from Adolf Flis pertaining to the victim's motive for falsely accusing the appellant; (2) whether trial counsel was ineffective in three aspects, namely: (a) in failing to call known medical witnesses on behalf of the appellant to establish his physical abilities at the time of the alleged arson; (b) in failing to object to the introduction of prior criminal conduct or in the alternative in failing to file a motion to restrict the use of such testimony; and (c) in failing to object to questions by the prosecutor pertaining to a matter that the trial court had ruled was immaterial and irrelevant; and (3) whether the trial court erred by admitting opinion testimony regarding appellant's drug addiction and intoxication.

The appellant's first issue pertains to the court's refusal to allow his trial counsel to question his father, Adolf Flis, about the stabbing incident. In an oral pre-trial motion, the Commonwealth moved to exclude all references to the stabbing incident. The motion was denied. At trial, Laura Flis testified to her version of the stabbing. She explained that on several occasions her brother, the appellant, had threatened her with bodily harm and threatened to have sex with her. To prevent the appellant from entering her room, she installed a lock outside her door and a latch inside. On the day of the stabbing incident, June 7, she was in her room talking on the phone to a friend when the appellant started yelling and shouting obscenities at her. Subsequently, according to Laura, he locked her in her room from the outside. She asked her friend on the phone to call her boyfriend to come over and help her. When Laura's boyfriend and her father arrived at the house, ...


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