decided: October 6, 1977.
COMMONWEALTH OF PENNSYLVANIA
JOHN L. FOSTER, APPELLANT
No. 1342 October Term 1976, Appeal from Judgment of Sentence imposed January 23, 1974 in the Court of Common Pleas, Trial Division, Criminal Section, County of Philadelphia, at Nos. 608, 609, 611, & 612 May Term, 1972.
Margaret M. Boyce, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, submitted a brief for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, and Jacobs, J., concur in the result.
[ 250 Pa. Super. Page 34]
On April 1, 1972, Lester Graham, who operates a Philadelphia grocery store, went to a slaughterhouse near his store to buy some meat. Upon his entry, a person, he later identified as appellant grabbed him and thrust a gun in his face. He was told by one of appellant's two accomplices to lie down. One of them took $150.00 and a gun from him. As a result of this incident, appellant was convicted, after a non-jury trial, of robbery, burglary, carrying a concealed deadly weapon, and carrying a firearm without a license. A Post-Conviction Hearing Act*fn1 petition won him the right to take this nunc pro tunc appeal.
Appellant raises two issues of which we can take cognizance on this appeal.*fn2 First, appellant argues that the evidence produced at trial was insufficient to sustain his conviction. In particular, appellant contends that the charge of carrying a firearm without a license cannot stand because the Commonwealth failed to prove that appellant lacked a license. It is true that the record says nothing about a license for the gun with which Mr. Graham was threatened; that gun, therefore, could not be the basis of the charge.*fn3 However, it was established that the gun taken
[ 250 Pa. Super. Page 35]
from Mr. Graham was licensed to Mr. Graham; thus, the trial court legitimately concluded that appellant carried a gun for which he did not have a license. Appellant's claim of insufficiency is accordingly rejected.
Appellant's second claim, that trial counsel was ineffective, is predicated on counsel's failure to call several alibi witnesses, whose names appellant allegedly had given him, as well as a witness who claimed to have heard another person admit to committing the crime in question.*fn4 Whatever facts support or refute this assertion are outside the record. While counsel's failure to call these witnesses may have had a reasonable basis, the record does not permit us to reach that conclusion. The main thrust of appellant's defense below was to question the identification, and the defenses of alibi and misidentification are entirely consistent. However, we cannot be certain that the testimony of these witnesses, if they exist, would have helped appellant. Counsel's decision may have had a reasonable basis, or it may have been the result of "sloth or lack of awareness of the available alternatives." Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975).
In order that this question may be answered we vacate the judgment of sentence and remand for an evidentiary hearing to determine whether counsel's assistance was constitutionally effective. If the hearing court decides that it was, the judgment of sentence shall be reinstated. If not, a new trial shall be granted.
Judgment of sentence is vacated and cause remanded for further proceedings consistent with this opinion.