This is an appeal from the judgments of sentence entered in the Court of Common Pleas of Allegheny County, dated January 24, 1992, which imposed sentence against appellant, James Fierst, for various criminal convictions. We vacate the judgments of sentence and remand for further proceedings.
The sequence of events which serves as the basis for the criminal complaints against appellant is protracted. On December 7, 1989, appellant went to see David Perl at the residence of Mr. Perl’s mother. When appellant arrived, Mr. Perl was helping his mother into the house from the driveway. Mr. Perl’s fiancee, Danielle Mainolfi, who is now his wife, was walking behind. Appellant approached Perl and asked to speak with him. Perl declined and asked if he could speak with appellant the following day. Appellant then left.
Mr. Perl and Ms. Mainolfi then went to Mr. Perl’s apartment in Wilkins Township. Approximately twenty minutes after leaving Perl’s mother’s house in Churchill, appellant went to Perl’s apartment. After that, Perl’s version of the events differs markedly from that advanced by appellant. Perl testified that he let appellant in the apartment with the intent of getting rid of him. He stated that appellant anxiously began following him around the apartment. When Perl entered his bedroom to fold laundry, appellant followed him in and asked Perl for his .357 magnum gun so that he could shoot himself. Per1 refused. Perl testified that appellant had previ
In contradiction to Mr. Perl’s averments, appellant testified in his own behalf that Perl initiated the attack. He stated that he never asked Perl for his gun and that once they entered the bedroom Perl began to strike him without provocation. Appellant asserted that Perl wanted him out of the apartment and threatened him with a knife. Appellant then testified that Ms. Mainolfi jumped onto his back and he swung around at her. All the while appellant questioned Perl why he was acting in this manner. Appellant then left the apartment.
After the incident at the Perl apartment, appellant got in his car and drove down Greensburg Pike towards Turtle Creek. From there, he drove on the Triboro Expressway which turns into Broadway in Pitcairn. Coming down a curve in the road, appellant swerved into the oncoming lane in which George Bucar was travelling in his car. Bucar swerved off the roadway to avoid being hit by appellant and slammed into the abutting hillside. Appellant returned to his proper lane but moments later swerved into the path of another oncoming car driven by Robert Baldosky. The two cars collided. As a result, passenger Marcie Brown, whose parents owned the car, was killed. After police arrived at the scene, they removed appellant from his car which was lying on its side. Police officers noticed that appellant seemed to be suffering from a seizure.
A jury trial was held from July 22-25, 1991 before the Honorable George H. Ross. On the first information, the jury convicted appellant of aggravated assault and reckless endangerment as to David Perl. Appellant was convicted of aggravated assault against Danielle Mainolfi, but was acquitted of recklessly endangering her. On the second information, appellant was convicted of murder in the third degree, and homicide by vehicle. Appellant was convicted of all counts in the third information.
Trial counsel for appellant filed timely post-verdict motions, which were denied. The trial court sentenced appellant to an aggregate term of incarceration of eighteen (18) to thirty-six (36) years, including a term of imprisonment of ten (10) to
Appellant raises four issues for our review:
1. was [trial] counsel ineffective for failing to offer expert testimony and instructions explaining the defense position that Mr. Fierst’s actions at the time of the collision were not voluntary;
2. was the evidence insufficient to support convictions for aggravated assault with respect to Danielle Mainolfi and George Bucar insofar as the Commonwealth did not prove that they suffered serious bodily injury, or that the defendant intended to inflict such injury; and was counsel ineffective for not preserving this issue in the brief in support of post trial motions;
3. did the [trial] court provide a sufficient statement of reasons for imposing sentence for third degree murder in the aggravated range of the guidelines; and was counsel ineffective for failing to preserve this issue;
4. did the [trial] court abuse its discretion in imposing the statutory maximum sentence for third degree murder by considering only the nature of the offense?
We shall first consider appellant’s claims of ineffectiveness for failing to challenge the sufficiency of two of the aggravated assault convictions as the relief for those claims is an acquittal on those counts.
Appellant maintains that the evidence was insufficient to prove the charges of aggravated assault directed against Danielle Mainolfi and George Bucar, and that trial counsel was ineffective for failing to pursue and preserve this issue in post-verdict motions. The crux of appellant’s argument is that since neither Mainolfi nor Bucar sustained serious bodily injury, the Commonwealth failed to prove that he
In order for us to determine whether appellant’s claim contains arguable merit, we must review the sufficiency of the evidence. Our standard of review for claims raising the sufficiency of the evidence is well established. “[A]n appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.”
Commonwealth v. Madison,
Our law deems a person guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; ...
18 Pa.C.S.A. § 2702(a). Further, as both sides stipulate, without any showing of actual serious bodily injury, the Commonwealth must demonstrate that an accused attempted to inflict serious bodily injury.
Commonwealth v. Everett,
In the present case, neither Danielle Mainolii nor Robert Bucar sustained serious bodily injury. Thus, in order for the evidence to be sufficient to prove aggravated assault against each of them, the Commonwealth had to prove that appellant
Appellant began beating Danielle Mainolfi after she jumped on him in response to David Perl’s screams. He had been severely beating Perl before that in order to obtain Perl’s gun. 6 Mainolfi testified that after she jumped on appellant’s back, he threw her onto the bed and started to hit her on her head and arms with a cold black instrument she thought was a police blackjack. Taken in a light most favorable to the Commonwealth as the verdict winner, the evidence demonstrates that appellant began viciously attacking David Perl to obtain his gun. He had told Perl to give him the gun or else he would kill him [Perl], In response to Perl’s screams, Mainolfi entered and tried to stop appellant from attacking Perl. At that point, he began beating Mainolfi with a hard weapon. After appellant noticed Perl escaping to find a weapon for himself, he ceased his attack on Mainolfi and redirected his attack towards Perl. The evidence demonstrates that appellant attacked whoever stood between him and Perl’s gun. The evidence indicates that he threatened to kill Perl. Given the chain of events which followed, it can be inferred that he also attempted to seriously injure Ms. Mainolfi to get the gun. The fact that Perl successfully thwarted the attack by chasing appellant away does not alter appellant’s intent to cause serious bodily injury. We find that under the circumstances of this incident, the evidence was sufficient to convict appellant of aggravated assault against Ms. Mainolfi.
Next, appellant contends that the evidence is insufficient to prove aggravated assault against George Bucar. Bu-car’s auto was the first car which appellant encountered as he came down the Triboro Expressway into Pitcairn. Appellant was already travelling in Bucar’s lane of traffic when Bucar
Appellant also argues that trial counsel was ineffective for failing to interview or call expert witnesses to testify concerning appellant’s alleged seizure which, according to his trial testimony, occurred shortly before the automobile accident in question. He contends that such evidence would have supported his defense that his act in hitting an oncoming automobile was involuntary. In order to assess whether appellant’s claim has merit, however, we must first delineate the defense which he proffers and assess its applicability. Appellant relies upon the involuntariness of his act while driving his car as a defense to third-degree murder and aggravated assault against George Bucar and Robert Baldosky. Appellant testified that before the incident occurred on the roadway in Pitcairn, the stress of his prior incident with Perl and Mainolfi brought on a seizure which caused him to lose control of his automobile. Section 301 of the Pennsylva
In
Cheatham,
the appellant argued that a seizure-induced blackout is an involuntary act which lacks the
mens rea
necessary
to
raise his conduct
from
negligent to grossly negligent as required to convict for homicide by vehicle.
Id.
at 605-07,
In the present matter, appellant testified that he had experienced seizures very few times in the past and they were brought on by distress. He also commented that he never considered the seizure disorder very serious. N.T. 7/24/91 at 27. Such evidence is not so strong compared with that which the Court in
Cheatham
faced with regard to the seizure disorder. However, it is clear that appellant, in his own mind, knew that stressful situations could cause him to have seizures. Therefore, appellant’s alleged seizure disorder would provide no defense to the charge of homicide by vehicle if he
However, the
mens rea
requirement applicable to both third degree murder and aggravated assault is different from that which pertains to homicide by vehicle. As stated previously, a conviction for homicide by vehicle can be sustained merely upon evidence that a defendant was grossly negligent. However, in order to sustain a conviction for third-degree murder, codified at 18 Pa.C.S.A. § 2502(c), the Commonwealth must establish that the killing was committed with malice aforethought.
Commonwealth v. Reilly,
Although the evidence presented by the Commonwealth may be sufficient to convict appellant of third degree murder
Appellant argues that prior counsel failed to interview pertinent witnesses. On that subject, we have held:
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty. Although counsel’s failure to interview witnesses about whom he neither knew nor should have known does not constitute ineffectiveness, he must investigate those he knows or has reason to know would be helpful to the defense.
Commonwealth v. White,
In
Commonwealth v. Potts,
When the only issue is appellant’s state of mind, trial counsel’s decision not to present relevant psychiatric and psychological testimony which may be determinative of the issue can be as damaging to the truthfinding process as the failure in other contexts to present the testimony of an available eyewitness, or other key witness.
Id.
at 513,
In a case where virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant, failure to explore all alternatives available to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’s truthfulness is ineffective assistance of counsel.
Commonwealth v. Twiggs,
In the case
sub judice,
the lack of malice involved in the claimed involuntariness of appellant’s actions based on seizure was his only defense to third degree murder and aggravated assault arising from the automobile collision. Appellant main
The Commonwealth responds that appellant has not met his threshold burden for establishing an ineffectiveness claim— namely, that he has not explained what exculpatory evidence would have been presented had counsel investigated this avenue. In support, the Commonwealth cites to our Supreme Court’s decision in
Commonwealth v. Wallace,
From the record we cannot ascertain whether counsel had a reasonable basis for failing to interview or call expert witnesses. Under these circumstances, we would normally remand for an evidentiary hearing on counsel’s ineffectiveness. However, we will not do so in this case because our resolution of appellant’s ineffectiveness claim on the underlying issue involving the jury instruction mandates the grant of a new trial.
Appellant argues that trial counsel was ineffective for failing to request a jury charge that appellant could not be
Jury instructions must be viewed in their totality to assess whether the charge accurately and adequately explains the relevant law to the jury and guides the jury in its deliberations.
Commonwealth v. Ort,
Appellant suggests that trial counsel was ineffective for failing to request a charge regarding the involuntariness of his actions as they related to malice, a necessary element in proving third degree murder and aggravated assault. The Commonwealth attempts to refute this argument by maintaining that the charge to the jury adequately covered the involuntariness of appellant’s actions. The trial judge charged the jury with the various categories of culpability, as defined in section 302 of the Crimes Code, which were necessary to prove the plethora of crimes with which appellant was charged. However, the trial judge failed to instruct the jury that appellant could be exonerated of the charges of third degree murder and aggravated assault relating to the automobile collision if it found that appellant’s actions were involuntary, in accordance with 18 Pa.C.S.A. § 301. Since we have determined that appellant had a valid defense on the basis of the involuntariness of his actions, the trial judge would have been required to instruct the jury of his defense had trial counsel requested such a charge. Since the jury was not instructed as to the involuntariness of appellant’s actions pursuant to section 301, it had no guidance on how to apply the defense to the circumstances of the case. Thus, the charge to the jury did not adequately explain the pertinent
Appellant’s next two issues concern the discretionary aspects of sentencing for appellant’s ten (10) to twenty (20) year conviction for third-degree murder. Because we vacate the conviction as to third-degree murder, however, we need not consider the sentencing issues. Although we affirm all of appellant’s convictions except for third-degree murder and the two counts of aggravated assault related to the automobile incident, the trial court’s sentencing scheme has been unavoidably disturbed by our disposition. Accordingly, we must vacate all judgments of sentence entered in this case.
Judgments of sentence are vacated; new trial is awarded on the count of third-degree murder contained in information number CC 9005437; new trial is awarded on the counts of aggravated assault contained in information number CC 9009127; case remanded for resentencing on all other counts. Jurisdiction is relinquished.
Notes
. 18 Pa.C.S.A. § 2702(a)(1).
. Id. § 2705.
. Id. § 2501.
. 75 Pa.C.S.A. § 3732.
. Appellant was charged with the summary offenses of reckless driving, 75 Pa.C.S.A. § 3714; driving on the right side of the roadway, id. § 3301; and, driving without a license, id. § 1501.
. The evidence sufficiently proves that appellant committed aggravated assault against David Perl.
. Section 301 provides the following rule of law:
(a) General rule.—A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
18 Pa.C.S.A. § 301(a).
. Section 302(b)(3) provides:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.
18 Pa.C.S.A. § 302(b)(3).
. The Commonwealth refers us to the decision in
Commonwealth v. Crosby,