No. 2213 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, as of Nos. 1685 and 1686, April Term, 1976.
George T. Guarnieri, Philadelphia, for appellant.
Deborah E. Glass, Assistant District Attorney, Philadelphia, with her F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 250 Pa. Super. Page 186]
Appellant raises the following contentions for our review. (1) The evidence is insufficient to convict appellant of simple assault;*fn1 (2) the evidence is insufficient to convict appellant of burglary;*fn2 (3) the proof at trial varied from the allegations in the information; (4) conviction of burglary and simple assault is impermissible; (5) the substantive amendment of the information charging burglary was improper; (6) the court improperly permitted the amendment of the private criminal complaint to include the charges of burglary and indecent assault; (7) the private criminal complaint fails to contain a certification of probable cause; (8) the preliminary hearing was not held within 10 days of the preliminary arraignment; (9) trial counsel was ineffective for failing to raise the above issues, numbers 4-8, in post-verdict motions; (10) trial counsel was also ineffective for the following reasons: (a) failure to impeach the complainant adequately; (b) failure to present the testimony of police officers to corroborate appellant's testimony; (c) failure to introduce evidence of appellant's drugged or intoxicated condition at the time of the incident; and (11) the verdict is against the weight of the evidence and a new trial is required in the interests of justice. Although we find the evidence sufficient to convict appellant of burglary, we are required to remand the case for an evidentiary hearing on the issue of trial counsel's ineffectiveness. If, after an evidentiary hearing, the lower court finds that trial counsel was effective, then the case must be remanded for resentencing because we vacate the judgment of sentence on simple assault.
At trial, the complainant testified to the following. On March 2, 1976, at approximately 6 p. m., appellant went to the complainant's home, 5217 Chester Ave., Philadelphia. Because appellant and complainant were acquaintances, she
[ 250 Pa. Super. Page 187]
permitted him to enter her apartment. The complainant testified that appellant began to push her around the apartment and, therefore, she telephoned the police. The police arrived and requested that appellant leave, and he did so. Approximately one-half hour after the departure of the police, the complainant, dressed in nightclothes, was watching television when she observed the appellant on the second floor roof of her apartment building. Appellant kicked in the window and leaped into the bedroom. The complainant stated that appellant called her a bitch and said that he wanted to kill her. The complainant fled from the apartment followed closely by appellant. Appellant caught complainant in front of her apartment building where he hit her, knocked her down and tore off her clothes. At this juncture, two passers-by intervened and appellant left the scene. Appellant testified that his first encounter with the complainant occurred essentially as described.
He then stated that after leaving her apartment he proceeded to a nearby bar where he was stabbed three times by an unnamed woman. He returned to the complainant's apartment covered with blood. The police, who were standing in the door of the complainant's apartment, transported appellant to a hospital where he remained for one week.
On March 4, 1976, the complainant filed a private criminal complaint which was approved by the district attorney on the same date. The court issued a summons which required that appellant appear for arraignment on March 19, 1976. On April 13, 1976, the court conducted a preliminary hearing and appellant was held for court. At the preliminary hearing, the court permitted the Commonwealth to amend the transcript to add the crimes of indecent assault*fn3 and burglary. On April 23, 1976, the district attorney brought three informations charging appellant with indecent assault, simple assault, and burglary. On May 28, 1976, after a non-jury trial, the court found appellant guilty of simple assault and
[ 250 Pa. Super. Page 188]
burglary.*fn4 It sentenced appellant to a term of imprisonment of time served up to 23 months on the assault charge and to a consecutive, three year term on probation of the burglary charge. Following the denial ...