No. 1933 October Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 1455, 1457 & 1458 December Term, 1976.
Robert Scandone, Philadelphia, for appellant.
Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth, Hester, and Watkins, JJ.*fn* Watkins, J., files a dissenting opinion. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 278 Pa. Super. Page 122]
Following a non-jury trial, appellant was convicted of possessing an instrument of crime,*fn1 robbery,*fn2 and aggravated assault.*fn3 Post-trial motions for a new trial and in arrest of judgment were denied, and sentence was imposed. For the reasons stated herein, we vacate the judgment of sentence and remand to the court of common pleas.
The pertinent facts are as follows. On November 1, 1976, the complainant, Mr. Homer Auston, and Mr. George Blackman
[ 278 Pa. Super. Page 123]
were engaged in a game of shuffleboard in a local Philadelphia bar. They wagered on the contest and exchanged money at the end of each game. After the contest concluded, appellant, who had observed the match, asked complainant to loan him five dollars, which request was refused. Subsequently, appellant asked the complainant to accompany him to a rear portion of the establishment to discuss the matter further. The complainant complied and, accompanied by Mr. Blackman and another bar patron, Doug Cannon, followed appellant into a back room. There appellant produced a gun, ordered Messrs. Blackman and Cannon into a corner, and then demanded money from the complainant. After removing money from the complainant's pocket, appellant ordered all three men to proceed onto the street fronting the establishment. Once outside the bar, the complainant overheard appellant telling Mr. Cannon that he was going to let Mr. Blackman go and was going to "cap" (i. e. kill) the complainant. The complainant then fled the scene and was pursued by appellant who, complainant testified, fired a shot at him during the chase.
The complainant eventually escaped and was able to locate Officer Edward Maenner of the Philadelphia Police Department and relate his account to him. Because he was familiar with appellant and was aware that there was an outstanding warrant for his arrest, Officer Maenner proceeded to a bar that he knew appellant frequented. There he confronted appellant and, after a short chase, arrested him.
On appeal, appellant contends that he was denied effective assistance of counsel due to counsel's failure to interview or subpoena Mr. Cannon, an acquitted co-defendant to the crime, and for counsel's failure either to interview Mr. Blackman prior to calling him as a defense witness, or to claim surprise when he testified adversely to appellant's interest.
In Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978), our supreme ...