No. 2176 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 02/0014, 02/0015, and 02/0016, 1978.
Tamara S. Gordon, Philadelphia, for appellant.
Thomas McGarrigle, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Gates, and Dowling, JJ.*fn*
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On April 10, 1978, appellant was found guilty in a non-jury trial of aggravated assault,*fn1 possession of an instrument of crime,*fn2 and recklessly endangering a person.*fn3 On July 11, 1978, judgment of sentence was imposed. The sole question raised in this direct appeal is whether trial counsel rendered ineffective assistance. Appellant is represented on appeal by counsel other than trial counsel, and the question, therefore, is properly raised by this appeal. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
The facts giving rise to these convictions need not be detailed, other than to note that they arose from a fight in
[ 275 Pa. Super. Page 197]
the men's restroom of a Philadelphia bar. The Commonwealth's evidence, established by the testimony of the complainant who suffered multiple serious injuries from a stabbing by appellant, demonstrated that appellant was the aggressor and had provoked the fight. Appellant's defense was self-defense. Trial counsel had subpoenaed appellant's alleged female companion for the evening. She did not appear at trial and the claim of ineffective assistance of counsel is premised upon trial counsel's failure to make any further effort to secure her presence and testimony.
We cannot determine from this record the basis for counsel's action in this matter. We therefore will remand for an evidentiary hearing for the trial court to determine, under the standard of Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), whether trial counsel's assistance was ineffective. The judgment of sentence will be vacated. If upon remand, the trial court decides that counsel's assistance did not meet this standard, a new trial shall be awarded. If, however, trial counsel's assistance is found not to be ineffective, the judgment of sentence shall be reinstated. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).
Following the hearing court's decision, the parties may appeal its order if they so desire. Said appeal will, of course, be limited solely to this issue of ineffective assistance of counsel, since that is the sole issue raised by this direct appeal.
President Judge G. THOMAS GATES of the Court of Common Pleas of Lebanon County, Pennsylvania and Judge JOHN C. DOWLING of the Court of Common Pleas of Dauphin County, ...