# Commonwealth v. Bachert

> Superior Court of Pennsylvania · October 19, 1979 · 271 Pa. Super. 72

URL: https://www.frixlaw.com/law-library/cases/9704770

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. William David BACHERT, Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** October 19, 1979
- **Citations:** 271 Pa. Super. 72; 412 A.2d 580; 1979 Pa. Super. LEXIS 3162
- **Precedential status:** Published
- **Opinion:** Concurring in part by Wieand
- **Judges:** Wieand, Nix and Wekselman
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Commonwealth v. Bachert, 499 Pa. 398 (1982).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9704770

## How later opinions describe it (automated extraction)

- discussing the Smith decision

## Opinion text

WIEAND, Judge,
concurring and dissenting:
I respectfully dissent from the majority’s conclusion that the evidence was insufficient to support the jury’s finding that appellant’s crime was murder in the first degree. Appellant and Charles Weber were accomplices in the kidnapping and robbing of Thomas R. Welsh. There was evidence from which a jury could find that Welsh was forced out of his vehicle along Interstate Route 81 in Luzerne County. He was then shot three times by Weber, in the arm, the left buttock, and the chest. Appellant stood by and watched. Welsh died as a result of shock and a loss of blood caused by the three gunshot wounds. Later, appellant boasted to friends that “we killed a guy.” Still later, appellant attempted to obtain assistance in covering up the events of the evening because, in his words, “we stole a car tonight and we shot a guy, we wasted a guy.” These statements by appellant were admissions, not only of his presence, but also of his participation in the killing. They were relevant to show a shared intent to kill at the time of the shooting. The decision in Commonwealth v. Hampton, 462 Pa. 322 , 341 A.2d 101 (1975), if my reading of it is correct, supports fully the sufficiency of this evidence. A jury could infer from it that appellant had a fully formed intent to kill. Therefore, I would affirm the jury’s finding that appellant was guilty of murder in the first degree.
I must dissent also from the majority’s conclusion that the award of a new trial is a proper remedy in this case. Even if the evidence were insufficient to sustain a conviction of murder in the first degree, the remedy should not be a new trial. The killing in the instant case was malicious and occurred while appellant and his accomplice were committing crimes of kidnapping and robbery. The evidence is more than sufficient, as the majority concedes, to sustain a conviction of second degree murder. Murder in the second degree has been held to be a lesser included offense of *86 murder in the first degree. Commonwealth v. Roberts, 484 Pa. 500, 502, 399 A.2d 404, 405 (1979); Commonwealth v. Garcia, 474 Pa. 449 , 378 A.2d 1199 (1977); Commonwealth v. Polimeni, 474 Pa. 430 , 378 A.2d 1189 (1977). Therefore, given the majority’s conclusion that the evidence cannot support a finding of murder in the first degree, I believe the proper remedy would be to reduce appellant’s crime to murder in the second degree.
Both state and federal courts have held that an appellate court has the power to reduce a conviction to a lesser included offense where the evidence is insufficient to support an element of the greater offense. The federal cases find authority for this power in 28 U.S.C. § 2106 . See: United States v. Swiderski, 548 F.2d 445 (2nd Cir. 1977); United States v. Industrial Laboratories, 456 F.2d 908 (10th Cir. 1972); DeMarrias v. United States, 453 F.2d 211 (8th Cir. 1972); Fuller v. United States, 132 U.S.App.D.C. 264 , 293, 407 F.2d 1199, 1228, n.29 (D.C.Cir.1968); Hemphill v. United States, 131 U.S.App.D.C. 46 , 402 F.2d 187 (D.C.Cir. 1968); Austin v. United States, 127 U.S.App.D.C. 180 , 382 F.2d 129 (D.C.Cir.1967). See also: United States v. Ciongoli, 358 F.2d 439 (3rd Cir. 1966). The federal statute is virtually identical to the Pennsylvania “Judicial Code”, 42 Pa.C.S. § 706. The Pennsylvania statute grants appellate courts the power to “affirm, modify, vacate, set aside or reverse any order brought before it for review and may remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances.” This section is merely a restatement of prior law. See, e. g.: Act of July 31, 1970, P.L. 673, No. 223, § 504, 17 P.S. § 211.504. See also: Commonwealth v. Sterling, 314 Pa. 76, 78 , 170 A. 258, 259 (1934).
State courts with similar statutes have reached the same result. See, e. g.: Blake v. State, 186 Ark. 77 , 52 S.W.2d 644 (1932); Ritchie v. State, 243 Ind. 614 , 189 N.E.2d 575 (1963); State v. Gunn, 89 Mont. 453 , 300 P. 212 (1931); State v. *87 Porello, 138 Ohio St. 239 , 34 N.E.2d 198 (1941); State v. Braley, 224 Or. 1 , 355 P.2d 467 (1960); State v. Sorrentino, 31 Wyo. 129 , 224 P. 420 (1924). The right to reduce the grade or degree of crime has also been recognized and approved in the following decisions: People v. Bridgehouse, 47 Cal.2d 406 , 303 P.2d 1018 (1956); Purkhiser v. State, 210 So.2d 448 (Fla.1968); Commonwealth v. Williams, 364 Mass. 145 , 301 N.E.2d 683 (1973); State v. Jackson, 198 Minn. 111 , 268 N.W. 924 (1936); Wells v. State, 305 So.2d 333 (Miss. 1974); People v. Rodriguez, 63 N.Y.A.D.2d 919, 406 N.Y.S.2d 63 (1978); Forsha v. State, 183 Tenn. 604 , 194 S.W.2d 463 (1946).
In the instant case, a reduction in degree of appellant’s crime would not prejudice appellant and would facilitate the just, efficient and final disposition of this criminal action.
In other respects, I concur with the majority. Specifically, I agree (1) that the trial court properly denied the several motions for change of venue made by appellant during voir dire examination; (2) that the trial court did not abuse its discretion by placing reasonable limitations upon participation during trial of an assistant defense counsel appointed at appellant’s request to achieve “parity” with the Commonwealth; and (3) that the sentences imposed by the trial court were proper and in compliance with the requirements of Commonwealth v. Riggins, 474 Pa. 115 , 377 A.2d 140 (1977).
Finally, I am constrained to agree that appellant’s pro se averments of ineffective assistance of trial counsel cannot be decided finally from the present state of the record. This compels a remand for the appointment of new counsel.
In summary, I would not set aside appellant’s conviction of murder in the first degree; and therefore, I must dissent from the award of a new trial. I concur, however, that the proceedings must be remanded for the appointment of new counsel to pursue by appropriate means the claim made by appellant that his trial counsel was ineffective.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9704770. Public record. Not legal advice.