Com. v. Sheppard

• Decision Date: 30 September 1994
• Citation: 436 Pa.Super. 584,648 A.2d 563
• Parties: COMMONWEALTH of Pennsylvania v. John Jay SHEPPARD, Appellant.
• Court: Pennsylvania Superior Court

Page 563

648 A.2d 563

436 Pa.Super. 584

COMMONWEALTH of Pennsylvania v. John Jay SHEPPARD, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 14, 1994.

Filed Sept. 30, 1994.

Lester G. Nauhaus, Public Defender, Pittsburgh, for appellant.

Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before OLSZEWSKI, TAMILIA and CERCONE, JJ.

TAMILIA, Judge:

Appellant, John Jay Sheppard, was convicted of first degree murder ¹ and appeals from the mandatory judgment of sentence of life imprisonment without parole entered December 9, 1991.

The trial judge, the Honorable W. Terrence O'Brien, accurately set forth the facts of this case as follows.

On March 9, 1991, between 3:00 and 4:00 P.M., Angel Stier went to the Sheppard home on Fitzsimmons Street in Penn Hills, Allegheny County. When she arrived the defendant, his sister, Amy, his brother, Robert, and his parents were there. The defendant, Robert and Stier went to the basement where they sat, talked and watched television. James Prenter subsequently joined them. Sometime between 5:00 and 7:00 P.M. the victim, Karl Kerr, arrived. He stayed about thirty minutes to an hour and then left. About a half hour later, Kerr returned with a "party ball", which is a round ball full of beer with a pump, similar to a keg. Then Kerr left, and the defendant, Robert, Prenter and Stier watched television, talked and drank.

Kerr returned, around 9:00 or 9:30 P.M., and brought a bottle of Jack Daniels, which everyone drank. After that, several arguments ensued. One incident involved Kerr slap boxing Robert, I.E., hitting him in the face. The defendant became angry and said, "You can't hit my brother." Kerr apologized to Robert and everyone resumed drinking and talking.

Kerr became more argumentative. Both he and defendant were drunk. Then defendant and Kerr argued about a mug that Kerr broke. The defendant wanted Kerr to pay for the mug, but he refused. Defendant accused Kerr of always breaking his "things".

At one point during the evening, Kerr was sitting at the bar, resting his head on his hands. Defendant went into the utility room and returned with an ax. He swung the ax at least twice, missing Kerr and striking the bar. Kerr got up and went to sit in a chair. The defendant followed him and continued swinging. The first blow hit Kerr's side. After defendant swung a couple more times, Kerr got up and tried to protect himself. Defendant continued his attack even after the unarmed Kerr was down, hitting him about the head, body and legs.

Detective Pat Meredith arrived at the Sheppard house at 12:50 A.M. The victim was laying on his left side, on the floor, partially on the ax. There was an enormous amount of blood on the floor and splattered on the ceiling, duct work and walls. He had numerous wounds to the head, chest and stomach area, and defensive wounds about the arm area. An autopsy revealed the cause of death to be incised wounds to the head. The long handled ax weighed 5 3/4 pounds. It was 34 inches in length with a 4 3/4 inch blade. There was blood and blood-encrusted hairs on the ax head which were consistent with the blood and hair of the victim.

(Slip Op., O'Brien, J., 6/30/93, pp. 2-4; citations to trial transcript omitted.)

As in any case where there is a factual dispute on the record as to the activities in which appellant and the victim engaged, the issues of credibility are to be determined by the jury. "[I]t is the prerogative of the fact-finder to believe all, part or none of the evidence presented." Commonwealth v. Hlatky, 426 Pa.Super. 66, 75-77, 626 A.2d 575, 580 (1993). Appellant's attack on the verdict avers in principle that the evidence was insufficient to convict him of first degree murder because his state of mind was such that he acted in the "heat of passion" or under an unreasonable belief the killing was in self-defense.

In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. If a jury could have reasonably determined from the evidence adduced that all of the necessary elements of the crime were established, then the evidence will be deemed sufficient to support the verdict.

Commonwealth v. La, 433 Pa.Super. 432, 640 A.2d 1336, 1350 (1994) (citations omitted). ²

Appellant contends that trial counsel was ineffective in presenting his defense which resulted in conviction of first degree murder rather than a lesser degree of guilt or possible discharge. We note that the instant timely appeal was perfected after trial counsel from the public defender's office withdrew and new counsel, also from the public defender's office, was assigned. In these circumstances, Commonwealth v. Barnes, 406 Pa.Super. 58, 593 A.2d 868 (1991), instructs Because present counsel is raising claims challenging the effectiveness of another attorney from the same office, we should remand the case for appointment of new counsel unless (1) it is clear from the record that counsel was ineffective, or (2) it is clear from the record that the ineffectiveness claim is meritless.

Id. at 60-61, 593 A.2d at 869 (emphasis added). Appellate counsel presents the following statement of questions for our consideration.

I. Was trial counsel ineffective for failing to argue that available psychiatric testimony relating to Mr. Sheppard's state of mind was relevant in determining whether he acted in the "heat of passion" or under an "unreasonable belief the killing was justifiable?"

II. Was trial counsel ineffective for failing to argue in post-trial motions that the trial court erred in not granting a mistrial based on the prosecutor's inflammatory remarks in his closing arguments?

Appellant's brief at p. 3.

The standard of review in analyzing ineffectiveness is subject to a three-tiered analysis. First, the appellant must demonstrate that the underlying claim is of arguable merit. Second, it must be determined whether counsel's choice of action had some reasonable basis designed to effectuate his/her client's interests and finally, we require a showing that establishes the manner in which counsel's choice of action prejudiced the client. Commonwealth v. Williams, 537 Pa. 1, 640 A.2d 1251 (1994); Commonwealth v. Toro, 432 Pa.Super. 383, 638 A.2d 991 (1994). The law presumes counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the appellant, Commonwealth v. Boyles, 407 Pa.Super. 343, 595 A.2d 1180 (1991), and counsel will not be deemed ineffective for failing to assert a defense that would not have been beneficial. Williams, supra. Moreover, 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, 559 A.2d 504 (1989).

Having established the criteria for review, we move to the issues posited by appellant. Appellant first contends trial counsel was ineffective for failing to pursue a "heat of passion" voluntary manslaughter defense by use of psychiatric (psychological) ³ testimony, pursuant to 18 Pa.C.S. § 2503, which provides:

(a) General rule.--A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:

(1) the individual killed.

This argument is without merit because at trial appellant did not testify that he acted in the "heat of passion" after Kerr had seriously provoked him. Two arguments ensued between appellant and Kerr, the first after Kerr was "slap boxing" with appellant's brother and the second after Kerr broke a naval mug belonging to appellant. In neither situation was there sufficient aggravating circumstances to constitute serious provocation. In fact, the appellant and Kerr were categorized as best friends, and after one of the disputes, the victim apologized for striking appellant's brother. The testimony elicited by the Commonwealth from Angel Stier concerning the two arguments and appellant's testimony alleging self-defense preclude the possibility of a "heat of passion" finding. Under these circumstances, psychiatric (psychological) testimony was not relevant or admissible to support that position.

Appellant also claims trial counsel was ineffective for failing to argue psychiatric (psychological) testimony was relevant to help establish appellant's state of mind when he acted "under an unreasonable belief the killing was justifiable." This argument is more complex, but, nonetheless, no basis exists for finding ineffectiveness.

Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974), is instructive as to when prejudicial error is committed in failing to introduce psychological/psychiatric evidence to aid in establishing a defense based upon "heat of passion" or "imperfect self-defense." It remains to be determined if error was committed when trial counsel failed to object to the denial of admission of testimony by the psychologist, Dr. Herbert Levit, as to impaired cognitive mental functioning based on paranoid ideation, exacerbated by heavy use of alcohol. As indicated above, pursuant to the standard espoused in Williams, and its predecessors and progeny, the ineffectiveness of counsel is measured by whether the course asserted to have been foregone by counsel would have reasonable merit, whether the course chosen had no reasonable basis designed to effectuate the client's interest and, finally, how counsel's commission or omission prejudiced him. Our analysis of the facts, admissibility of the psychological testimony and the court's charge to the jury leads us to conclude there was no merit to the argument of "imperfect self-defense" based on impaired state of mind, and the...