NO. 80-3-439, Appeal from Judgment of Sentence of the Court of Common Pleas of Lancaster County, Pennsylvania, Criminal, No. 2083 of 1978, imposed February 7, 1980.
Thomas G. Klingensmith, Asst. Public Defender, for appellant.
Edward F. Browne, Jr., Asst. Dist. Atty., for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. McDermott, J., dissents.
On November 25, 1978, two men, armed respectively with a .357 magnum pistol and a 12 gauge shotgun, approached and menaced appellant and his friends as they emerged from a bar in the early hours of the morning. The two assailants were angry because appellant had objected in the bar to one of them making advances to his female companion. Outside the bar, as the assailants approached, the man armed with the pistol, after making verbal threats, began shooting, and one of appellant's friends was shot in the leg. The assailant armed with the shotgun then apparently abandoned the shotgun, and, according to the testimony of the appellant and his female companion, the woman, who had been hiding behind a car during the shooting, saw the shotgun and threw the gun to appellant. Appellant claims that as he caught the gun, it accidentally discharged, killing the victim.
Appellant was charged with first degree murder, and on March 16, 1979, after a trial by jury in the Court of Common Pleas of Lancaster County, Pennsylvania, was found guilty of voluntary manslaughter. Post-verdict motions and an application for leave to withdraw as counsel were filed by trial counsel, stating that appellant intended to raise trial counsel's ineffectiveness on appeal. The trial judge granted the motion to withdraw and, after appointing new counsel, ordered a hearing to be held on the issue of trial counsel's ineffectiveness. Post-verdict motions subsequently were denied
and appellant was sentenced to imprisonment for not less than four nor more than ten years. Also, appellant was fined $200 and ordered to pay costs. A timely motion to modify sentence was denied and this direct appeal followed.
At issue on this appeal is whether trial counsel was ineffective for introducing appellant's prior criminal record. Approximately two and a half years prior to the date of trial, appellant had pled guilty to charges of aggravated assault and terroristic threats. The incident involved a family quarrel with his brother-in-law, whom appellant accused of mistreating appellant's sister, the brother-in-law's wife. At the hearing on trial counsel's ineffectiveness, trial counsel testified that he introduced appellant's prior criminal record in order to establish appellant's truthfulness and credibility and because he believed that if he did not introduce the criminal record, the Commonwealth would introduce it:
Q. Was it your professional opinion at this time that the Commonwealth could not introduce Mr. Jones' prior criminal record?
A. I thought that there was a possibility of it being introduced by the Commonwealth for two reasons. Basically I thought they might introduce it to show that there was an absence of accident or mistake on his part. My review of the cases indicated that was an ...