No. 1770 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Northampton County at No. 294 January Term, 1975.
Harry C. J. Blair, Easton, for appellant.
John Gallagher, District Attorney, Easton, for Commonwealth, appellee.
Price, Cavanaugh and Watkins, JJ. Watkins, J., files dissenting opinion.
[ 295 Pa. Super. Page 294]
On April 17, 1975, following a jury trial, the appellant, Ronald Vernon Matt, was found guilty of robbery. Post trial motions were denied and dismissed by the court en banc. On October 18, 1975, Matt was sentenced to a term of imprisonment of four to eight years. Matt, by his trial counsel, appealed and we affirmed the lower court. Commonwealth v. Matt, 249 Pa. Super. 98, 375 A.2d 777 (1977).
In the matter now before us the appellant attacks his conviction by way of a Post Conviction Hearing Act petition. The petition claims that the appellant has been denied his constitutional right to effective assistance of counsel; and that his sentencing was defective due to the trial court's failure to comply with the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). The lower court, recognizing that Riggins has been given retroactive application in Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977), ordered that Matt be resentenced,*fn1 but dismissed the remaining claims as without merit. This appeal followed. We reverse.
Perceived in the light most favorable to the Commonwealth, see Commonwealth v. Lee, 460 Pa. 374, 333 A.2d 773 (1975); Commonwealth v. Irvin, 260 Pa. Super. 122, 393 A.2d
[ 295 Pa. Super. Page 2951042]
(1978), the following was adduced at trial. On February 3, 1975 the victim of the robbery, Joseph Feist, met appellant and discussed the purchase of a stereo from one of appellant's friends. Later in the day appellant and Feist joined a third person who was to drive them to see the stereo. While in the car the appellant grabbed a spatula and held it to the victim's throat. He demanded the victim's money, punched him and forced his head against the dashboard. While the victim was so positioned, the appellant removed $140.00 from him. According to the appellant he and Feist had been playing pool earlier in the day and that as a result Feist owed him $55.00. Matt claimed that the scuffle in the car arose due to his efforts to recover the gambling debt. Appellant admitted that he tried to get money from Feist, that he struck him with his hand and attempted to hit him with the spatula. However, he denied taking any money. The victim, Feist, on the other hand denied losing $55.00 to Matt while playing pool and stated that he did not know how to play pool.
First we will consider appellant's claim of ineffective assistance of counsel. We have often stated the test for determining whether trial counsel has been effective:
We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis.
Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967).
As noted above, as part of Matt's defense he claimed that he had been playing pool with Feist on the day of the alleged robbery. During cross-examination the Commonwealth
[ 295 Pa. Super. Page 296]
questioned Matt as to the whereabouts of the attendant at the pool hall who might corroborate Matt's testimony. The following exchange took place:
Q How long were you playing pool there that day?
A No more than -- no more than an hour, ...