NO. 1389 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal, No. 718-21, June Term 1981.
Larry D. Feldman, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and McEwen and Hoffman, JJ. Hoffman, J., files a dissenting opinion.
[ 318 Pa. Super. Page 451]
This is an appeal from a judgment of sentence imposed following a finding of guilt after a non-jury trial by the distinguished Philadelphia County Common Pleas Court Judge William Porter on charges of simple assault,*fn1 aggravated assault,*fn2 recklessly endangering another person,*fn3 and
[ 318 Pa. Super. Page 452]
possessing an instrument of crime.*fn4 Appellant was sentenced to a term of imprisonment of from two to eight years for aggravated assault and a concurrent term of imprisonment of from two to five years for possessing an instrument of crime. Appellant now argues that trial counsel was ineffective for failing to obtain a continuance in order to obtain the presence of eyewitnesses to the offenses allegedly committed by appellant. We affirm.
This case arises out of an altercation between appellant and a street vendor who was conducting business at the corner of Broad Street and Girard Avenue in Philadelphia. Appellant approached the street vendor from behind, drew a pistol from a bag and fired several shots at the vendor. While the victim lay on the ground, appellant fired another shot into his back and then fled from the scene.
The assistant district attorney had during the trial been under the impression that the names and addresses of three witnesses known to the Commonwealth had already been supplied to trial counsel for appellant. When the prosecutor, at the conclusion of the presentation of the defense, realized that those witnesses had not been identified to trial counsel for appellant, counsel for the Commonwealth supplied that information and indicated a willingness to permit the defense to reopen its case. While the record does not reflect the content or nature of the discussion that then ensued between the prosecutor and trial counsel for appellant, the transcript does indicate that trial counsel did not proceed to move to reopen the defense so as to apply for a delay. Appellant now asserts that trial counsel was ineffective since he "neither attempted to reopen his case or continue it in order to obtain the presence and testimony of probably helpful witnesses." (Brief of Appellant at 5) (emphasis supplied). Appellant makes no other reference to these witnesses except to state that "[t]heir testimony might have been of incalculable aid to the appellant." (Brief of Appellant at 6) (emphasis supplied).
[ 318 Pa. Super. Page 453]
When we study a claim of ineffectiveness of counsel, we first determine whether the claim is of arguable merit. Only if the underlying claim is of arguable merit do we consider whether the strategy chosen by trial counsel has some reasonable basis designed to effectuate the interest of the client. Commonwealth v. Evans, 489 Pa. 85, 94, 413 A.2d 1025, 1028 (1980); Commonwealth v. Kaufman, 307 Pa. Super. 63, 73, 452 A.2d 1039, 1044 (1982). Our review of a claim that counsel was ineffective is governed by the standard enunciated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):
[C]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 ...