Com. v. Ehrsam

• Decision Date: 09 July 1986
• Citation: 512 A.2d 1199,355 Pa.Super. 40
• Parties: COMMONWEALTH of Pennsylvania, v. Kathleen EHRSAM, Appellant.
• Court: Pennsylvania Superior Court

Page 1199

512 A.2d 1199

355 Pa.Super. 40

COMMONWEALTH of Pennsylvania, v. Kathleen EHRSAM, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 13, 1986.

Filed July 9, 1986.

James P. McEvilly, Jr., Feasterville, for appellant.

Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com., appellee.

Before ROWLEY, MONTEMURO and KELLY, JJ.

MONTEMURO, Judge:

This appeal presents multiple claims alleging ineffectiveness of trial counsel, errors in the court's charge to the jury, the unconstitutionality of section 9712 of the Mandatory Minimum Sentencing Act, ¹ and error in the court's refusal to order disclosure to the defense of certain notes made by the complainant during the trial.

Appellant, Kathleen Ehrsam, was charged with attempted homicide, ² aggravated assault, ³ simple assault, ⁴ recklessly endangering another person, ⁵ and possession of an instrument of crime. ⁶ She was tried before a jury and, on December 15, 1983, was found guilty of aggravated assault, simple assault, recklessly endangering another person and possession of an instrument of crime. Following the denial of post-verdict motions, appellant was sentenced to a term of imprisonment of five to ten years. Thereafter, appellant filed a timely motion for reconsideration of sentence, which was denied. This appeal followed.

The trial court correctly summarized the pertinent facts in this case as follows:

On July 3, 1983, Andrew Woehrel was shot by defendant [appellant] at a rental property owned by Woehrel. The property, which was located in Kintnersville, Bucks County, Pennsylvania, had been rented to defendant and her husband, Edwin Ehrsam, and their family for a period of approximately one year prior to the incident. The Ehrsams had fallen behind in their rent payments and had been advised by Woehrel in May, 1983 that he wanted to obtain new tenants by July, 1983. The Ehrsams had indicated to Woehrel that they would vacate the premises by July 1, 1983. When the Ehrsams did not vacate the premises as promised, Woehrel offered to help them move. The Ehrsams said they would discuss it and get back to him.

On July 3, 1983, not having received a response to his offer, Woehrel drove to the rented property at noontime to discuss the situation. A heated argument ensued between Woehrel, Edwin Ehrsam and defendant with the Ehrsams telling Woehrel they would not leave voluntarily and that Woehrel would have to evict them. Defendant threatened to call the police. Woehrel offered to assist the Ehrsams monetarily, and by allowing them to camp on his other property which was a bar located nearby. Edwin Ehrsam promised to get back to him later that day.

That afternoon, Woehrel asked his son, Mark, and Mark's friend, Paul McBride, to stop by the Ehrsams to see whether they had decided to leave. When he arrived, Mark discussed the situation with defendant's husband. Defendant thereafter accosted Mark and Paul and threatened to shoot them if they didn't get off the porch.

Meanwhile, Woehrel had asked a friend, Vic Jones, to accompany him to the Ehrsams. Woehrel proposed that Jones impersonate a prospective tenant for the property. Jones refused, but did agree to go with Woehrel to discuss the situation with the Ehrsams again and to offer them the use of his van in moving. Jones owned rental properties and had prior experience in handling recalcitrant tenants.

Woehrel and Jones drove to the Ehrsams in Woehrel's car and parked it next to hedgerows in front of the house. Woehrel testified that Jones knocked on the door, and then he heard Jones yell "Hey, what are you doing?" Jones then ran to the car holding a shotgun which he threw in the backseat. [Jones testified at trial that he had grabbed the shotgun from appellant's husband.] Defendant and her husband were on the porch of the house. A scuffle ensued where defendant and her husband attacked Jones and attempted to regain the shotgun. Woehrel then saw an individual, later identified as defendant's brother, Ted Praul, point a .22 rifle out of a window and shoot at the car tires. Praul then left the house and threatened to blow Woehrel's head off if the shotgun wasn't returned. Defendant then took the shotgun into the house.

Woehrel got out of the car to help Jones. As he approached the house, defendant came out of the house onto the porch pointing the .22 rifle at Woehrel. Defendant threatened to shoot Woehrel and then without further warning shot him. The bullet struck Woehrel in the side then travelled to his spine. Jones testified that he heard Woehrel cry "Oh, I'm shot, Vic, I'm shot" and then he saw Woehrel lying on the ground in front of the porch. The result of the gunshot wound paralyzed Woehrel from the waist down and necessitated lengthy hospitalization and rehabilitation treatments.

Trial court's opinion at 1-4.

Appellant's version was somewhat different. While not denying that she had shot Woehrel, appellant testified that Woehrel was in the dining room inside the house when the shooting occurred. According to appellant, Jones and Woehrel forced their way into the house and in an ensuing scuffle her husband ended up lying on the floor with Woehrel standing over him pointing a shotgun at her husband's chest. Appellant testified that, after she observed Woehrel squeeze the trigger of the shotgun, she shot him with a .22 caliber rifle. She stated that Woehrel fell back against the front door, staggered a few steps onto the porch, and then fell to the ground. N.T. December 14, 1983, at 360-363.

As we indicated above, appellant raises the following claims on appeal: (1) defense counsel was ineffective; (2) the court erred in charging the jury that appellant had a duty to retreat; (3) the court erred in failing to charge the jury that the house's front porch was part of the dwelling; (4) the court erred in failing to charge the jury that a landlord does not have a right to remain on leased property against the wishes of the lessee; (5) section 9712 of the Mandatory Minimum Sentencing Act is unconstitutional and; (6) the court erred in refusing to order the Commonwealth to disclose to the defense the contents of certain notes which the victim had made during the trial.

INEFFECTIVENESS OF TRIAL COUNSEL

Appellant presents multiple claims of defense counsel's ineffectiveness, which we will consider seriatim.

When reviewing the effectiveness of counsel, the threshold inquiry is whether the issue/argument/tactic which counsel has foregone, and which forms the basis for the assertion of ineffectiveness, is of arguable merit. This is so because counsel cannot be considered ineffective for failing to assert a baseless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If the underlying claim possesses arguable merit, we then ask whether counsel's handling of the matter had a reasonable basis designed to effectuate his client's interests. Commonwealth v. Broadwater, 330 Pa.Super. 234, 479 A.2d 526 (1984). Finally, even if counsel was ineffective, to prevail on appeal the appellant must show that the ineffectiveness so prejudiced his (her) case as to deprive him (her) of a fair trial. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985).

Appellant's first claim of ineffectiveness regards counsel's failure to object to the introduction of what appellant alleges was illegally obtained evidence. Appellant refers to measurements and photographs of the interior of the house made by police officers who arrived on the scene shortly after the shooting and conducted a warrantless search of the house. She also refers to the officers' recollections as to their observation of the interior of the house.

Our review of the record convinces us that the underlying claim has no arguable merit inasmuch as there was no valid basis for suppressing the aforementioned evidence. Although as a general rule a search and seizure conducted without a warrant is deemed unreasonable for constitutional purposes, the warrant requirement is excused where exigent circumstances exist. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). Such circumstances arise where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, id. at 102, 389 A.2d at 106, or because there exists a threat of physical harm to police officers or other innocent individuals, Commonwealth v. Hinkson, 315 Pa.Super. 23, 27, 461 A.2d 616, 618 (1983). We believe both conditions were present in the instant case.

When police officers arrived on the scene shortly after the shooting, they were told that appellant was the perpetrator and that she was still inside the house. N.T., Suppression Hearing, December 12, 1983, at 13-14, 34-35. Since the officers had been told that appellant had already shot one person, considerations for their own safety as well as that of others ⁷ clearly justified their entry into the house. Once inside, they were entitled to seize items in plain view. "[T]he police may seize any evidence that is in plain view during the course of their legitimate emergency activities." Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978). See also, Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980) (Flaherty, J., with three justices concurring). The photographs, measurements, and officers' recollections which were admitted into evidence were all of readily observable features of the interior of the house. ⁸ The items seized were thus in plain view.

The warrantless search was additionally justified by a need to insure that evidence of the crime was not removed or destroyed. The officers had been told that shots had been fired from the house, and it was certainly reasonable for them to enter the house as soon as possible in order to prevent appellant or anyone else who might be inside from secreting either the weapon involved or bullet casings.

We conclude that as the warrantless...