Com. v. Fierst

• Decision Date: 24 February 1993
• Citation: 423 Pa.Super. 232,620 A.2d 1196
• Parties: COMMONWEALTH of Pennsylvania v. James R. FIERST, Appellant.
• Court: Pennsylvania Superior Court

Page 1196

620 A.2d 1196

423 Pa.Super. 232

COMMONWEALTH of Pennsylvania v. James R. FIERST, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 2, 1992.

Filed Feb. 24, 1993.

Shelley Stark, Public Defender, Pittsburgh, for appellant.

Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before ROWLEY, President Judge and HUDOCK and CERCONE, JJ.

CERCONE, Judge:

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. Perl refused. Perl testified that appellant had previously manifested certain suicidal and homicidal tendencies. Perl then stated that appellant diverted Perl's attention by pointing to something in Perl's fish tank, and attacked him. According to Perl, appellant continuously hit him on different areas of his head and torso with a heavy metal object. During this time, he testified that appellant announced, "Give me your gun or I will kill you." Perl screamed for help and Ms. Mainolfi entered and jumped on appellant who then threw her off and began to hit her. Perl was then able to obtain a knife and he lunged toward appellant with the weapon. Appellant jumped back and yelled, "Have you gone crazy?" Shortly thereafter, appellant fled. As a result of the scuffle, Mr. Perl sustained head injuries which required 51 stitches. Ms. Mainolfi sustained minor bruises.

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.

Based on the alleged reign of terror caused by appellant, the Commonwealth filed three separate informations against him. The first information (CC 9000961) charged appellant with two counts of aggravated assault ¹ and two counts of reckless endangerment of another person ² in connection with the scuffle involving David Perl and Danielle Mainolfi. The second information (CC 9005437) charged appellant with one count of criminal homicide ³ and one count of homicide by vehicle ⁴ in connection with the death of Marcie Brown. The last information (CC 9009127) charged appellant with one count each of aggravated assault and reckless endangerment in connection with the aforementioned automobile accident for appellant's attempt to cause bodily injury to the driver of the automobile, Robert Baldosky. The information also charged appellant with aggravated assault and reckless endangerment in connection with appellant's prior attempt to collide with the automobile driven by George Bucar. Appellant was also charged with various summary offenses in that information. ⁵

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 twenty (20) years on the conviction of third-degree murder. This particular sentence was the statutory maximum for third-degree murder. Appellant then filed a motion to modify sentence, which was denied. On February 14, 1992 appellant filed his timely notice of appeal and leave to file an appeal in forma pauperis. The trial court granted appellant's request for leave and appointed the Allegheny County Public Defender to represent him.

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 specifically intended to cause them serious bodily injury. Our standard of review for allegations of ineffective assistance of counsel is well-established and quite narrow. Ineffectiveness claims are subject to a three-part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel's choice of action had some reasonable basis designed to effectuate his or her client's interests. Finally, a showing must be made of how counsel's choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989), allocatur denied, 524 Pa. 619, 571 A.2d 382 (1989). Prejudice in the context of a claim of ineffective assistance of counsel is determined by an evaluation of whether "but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different." Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987). The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Smith, 380 Pa.Super. 619, 624, 552 A.2d 1053, 1056 (1989), allocatur denied, 525 Pa. 581, 575 A.2d 112 (1990). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Cook, 383 Pa.Super. 615, 623, 557 A.2d 421, 425 (1989). Moreover, in making assertions of ineffectiveness, a claimant must allege sufficient facts upon which a reviewing court can conclude that trial counsel may have been ineffective since the appellate courts will not consider such claims in a vacuum. Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989).

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...