Mount Carmel man seeks a new trial claiming ineffective counsel
SUNBURY - A 33-year-old Mount Carmel man sentenced earlier this year to serve 3 1/2 to 7 years in a state correctional institution is seeking a new trial after claiming he was not properly represented by his former attorney.
Northumberland County Judge William H. Wiest, who presided over a post-sentence motion hearing Wednesday afternoon for Jason M. Bozarth, said he will issue a written ruling in the case after listening to testimony from the defendant and his former lawyer, Northumberland County Special Conflicts Counsel Michael Seward.
Bozarth was charged by Mount Carmel Cpl. Christopher Buhay with assaulting Richard McPeak, of Mount Carmel, a state correctional officer, on Aug. 18, 2010, in the area of Market and Sixth streets in Mount Carmel. McPeak suffered a broken jaw and numerous cuts, scrapes and abrasions in the assault, police said.
Bozarth was convicted by a jury Feb. 17 of multiple charges, including felonies of aggravated assault and criminal conspiracy to commit aggravated assault and sentenced by Wiest on April 9 to serve 3 1/2 to 7 years in state prison. In addition to the state prison sentence, Bozarth was ordered to pay $1,700 in fines and make restitution totaling approximately $22,450.
His new defense attorney, Michael Rudinski, of Williamsport, argued Wednesday that his client was provided ineffective counsel by Seward, whom he claimed failed to pursue various issues raised at trial.
Bozarth testified that Seward failed to bring to the jury's attention his claim that he would have seriously injured himself if he hit McPeak with a cast on his hand as alleged by police. Bozarth said he had two pins through four of his fingers under his cast and that a doctor told him he would have seriously injured his hand by hitting McPeak with the cast.
Rudinski said Seward failed to question a police report regarding blood spotted at the scene of the assault and a claim by his client that Buhay was biased because he knew the victim. The defense attorney also argued McPeak told police he didn't recognize who assaulted him until seeing Bozarth's photograph in a local newspaper and didn't identify Bozarth as the defendant until his trial.
Rudinski said Seward failed to pursue claims that McPeak may have instigated the assault by continuing to argue with Bozarth.
Seward, who was called to the witness stand by Assistant District Attorney Michael Toomey, disputed Bozarth's claim that a doctor told him he would have been seriously injured if he hit McPeak with a cast and pointed out that other witnesses testified that they saw Bozarth hit McPeak with his cast.
Seward said a police officer testified that there was blood on Bozarth's arm, but not on his cast. The attorney said he believed challenging Buhay's credibility about knowing the victim would not have helped his client's chances with the jury.
Seward also pointed out that Bozarth was the only person involved in the disturbance who was wearing a cast on his hand.
As for the claim made by Rudinski and Bozarth that McPeak was aggressive during the incident, Seward characterized McPeak as an "unpredictable" witness who seemed to embellish everything he said at the trial.
Seward said he didn't cross exam McPeak because he thought his testimony was less credible than his client's.
During their closing arguments, Rudinski requested a new trial, while Toomey said Bozarth was properly represented by Seward and justly convicted.
Toomey argued that the hearing was premature because Rudinski hadn't filed a post conviction relief order, but Wiest ruled it was proper for the hearing to proceed.
At the beginning of the hearing, Rudinski withdrew three motions previously filed by Bozarth that claimed the defendant received an "unduly harsh sentence" by Wiest. Rudinski said his client misunderstood that his sentence was at the bottom of the standard range for the offenses he was convicted of committing.