Commonwealth v. Evans

494 A.2d 383, 343 Pa. Super. 118, 1985 Pa. Super. LEXIS 7144
Supreme Court of Pennsylvania·Decided April 19, 1985·No. 2666·Published·Cited by 44 cases

Opinions

McEWEN, Judge:

We here study an appeal from a judgment of sentence imposed following a jury trial at which appellant was found guilty of second degree murder, robbery, kidnapping, conspiracy and prohibited offensive weapons and sentenced to serve a life term.1 Appellant presents various allegations of ineffective assistance of counsel2 and argues that the sentence imposed on multiple inchoate offenses was improper.3 We affirm the second degree murder and con[123] spiracy convictions, but vacate the judgment of sentence upon the prohibited offensive weapons conviction which was to have been served concurrently with the life sentence for murder.

As the victim, a 68 year old man, approached his parked Cadillac in a shopping center in Lower Merion, Pennsylvania, appellant’s two accomplices forced him at the point of appellant’s sawed-off shotgun into the back seat of the Cadillac and proceeded to follow appellant who was driving a Volkswagen. Appellant and his accomplices drove through Fairmount Park where they took the victim’s wallet before releasing him. The complaint of the victim was recorded by a radio dispatcher:

CALLER: I was coming out of the Acme in Bala and my wife was waiting and I walked to my car and these guys were waiting for me.
RADIO: And what happened?
CALLER: They put me, I can’t talk, I have a heart condition.
RADIO: Yeah, well just ...
CALLER: They put me in the car, cleaned me out. They let me out down here. They had a sawed-off shotgun on me. Okay.
RADIO: Okay.
CALLER: So, I’m standing here waiting.
RADIO: All right, what’s your car there?
CALLER: No, they went with it. I got a black Seville, Cadillac.
JjE $ $ >jc Jj<
RADIO: Two males?
CALLER: Pardon me?
RADIO: Two males?
CALLER: Yeah, two black ones and, and there was one in a, another one or two in a little Volkswagen was following.
* * Jit * * *
RADIO: Just try, try to relax if you can. They’ll be right there.
[124] CALLER: Okay.
RADIO: I’m gonna just keep you on the line.
CALLER: Okay.
RADIO: Which way did they go in your Cadillac, do you have any idea?
CALLER: They kept riding along this road that goes past the Playhouse.
RADIO: Do you have any medication that you could be taking or anything?
CALLER: Yeah, I got a nitro.
RADIO: You got it with you?
CALLER: Yeah, I took one.
RADIO: Okay.
CALLER: I’m having a little trouble breathing.
RADIO: Yeah, I, I know it’s tough to relax.
CALLER: Yeah, I ...
RADIO: But, but the worst ...
CALLER: I was very ...
RADIO: You know ...
CALLER: Yeah, that’s all ...
RADIO: I, I know it’s a frightening experience.
CALLER: The first time I ever had this happen.
RADIO: Yeah, If you have to go to the hospital you just tell the police when they get there if that’s your condition.
CALLER: No, I don’t want, I don’t think I have to go to the hospital.
RADIO: All right. I just want to stay on there until you see a, the police come up on you because in that Park sometimes it’s a little tricky.
CALLER: I wish they’d get here.
RADIO: Yeah, they, they’ll be, they should be there any second. Let me know when you, you know, when they come up on you, they, they should be there by now. You don’t see anything yet?
CALLER: I’m having trouble breathing, I wish ...
[125] RADIO: You are? Well, they, they, I ... didn’t see anybody fly by you did you, any police cars?
CALLER: No, no.
RADIO: Well, there’s several units enroute there, I, I’m following it on the screen here..... I mean, the job’s been on.
CALLER: I’m having trouble breathing.
RADIO: You are?
CALLER: Yeah, I’m having......yeah, here they are now.
RADIO: All right, tell them about your breathing. Shortly after the police arrived, they rushed the victim to a nearby hospital where he died within four hours as a result of cardiac arrest.

Appellant contends that trial counsel was ineffective since he did not express, and thereby preserve, certain issues in post-verdict motions. The limits of our review upon this contention are well established:

When we study a claim of ineffectiveness of counsel, we first determine whether the claim is of arguable merit. Only if the underlying claim is of arguable merit do we consider whether the strategy chosen by trial counsel has some reasonable basis designed to effectuate the interest of the client. Commonwealth v. Evans, 489 Pa. 85, 94, 413 A.2d 1025, 1028 (1980); Commonwealth v. Kaufman, 307 Pa.Super. 63, [73], 452 A.2d 1039, 1044 (1982). Our review of the claim that counsel was ineffective is governed by the standard enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):
[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 record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon [126] as it is determined that trial counsel’s decisions had any reasonable basis.

Id., 427 Pa. at 604-05, 235 A.2d at 352-53. (emphasis in original).

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Commonwealth v. Evans, 494 A.2d 383, 343 Pa. Super. 118, 1985 Pa. Super. LEXIS 7144 (Pa. 1985).

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