NO. 2689 Philadelphia, 1982, Appeal from the Judgment of Sentence August 19, 1982, In the Court of Common Pleas of Montgomery County, Criminal, No. 2080-81. NO. 2718 Philadelphia, 1982, Appeal from the Order entered February 23, 1982 In the Court of Common Pleas of Montgomery County, Criminal, No. 2080-81.
Jeffrey Toaltoan, Philadelphia, for appellant.
J. William Ditter, III, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Brosky, Wieand and McEwen, JJ.
[ 329 Pa. Super. Page 191]
This is a direct appeal undertaken after appellant was found guilty by a jury of robbery, theft, simple and aggravated assault, recklessly endangering another person, terroristic threats, possession of an instrument of crime, possession of a weapon and criminal conspiracy. The distinguished Judge Samuel W. Salus II sentenced appellant to serve a term of imprisonment of from five to ten years for robbery and a term of probation of five years for conspiracy to commence upon his release from prison on the robbery conviction. Appellant, represented by new counsel on appeal, raises allegations of ineffectiveness of not only his pre-trial counsel but also of his trial counsel, and presents, as well, arguments concerning the rulings of the trial court. While the trial judge properly rejected the post-trial motions of appellant, we are compelled to remand for an evidentiary hearing on one issue of ineffectiveness.*fn1
The charges arose from an attack by two men upon a 22 year old woman as she alighted from her automobile in a shopping area. One robber brandished a knife as he grabbed the victim from behind and pushed her to the ground with threats to cut and rape her. When his accomplice was unable to open the locked door of the victim's car, the assailant repeatedly struck the eye of the victim while demanding the car keys. When the approach of a nearby shopkeeper caused the robbers to halt the attack and flee, they nonetheless absconded with the pocketbook of the victim which contained approximately $150.00 in cash and credit cards. The victim required hospital treatment and
[ 329 Pa. Super. Page 192]
x-ray examination for the severe facial injuries she had sustained in the attack, including bruises of the nose and both eyes, one of which was swollen shut for a week. The victim subsequently identified a picture of appellant as the man who had attacked and threatened her from a photographic array which had been assembled by the police.
Appellant was arrested on June 26, 1981, and charged with conspiracy, possession of instruments of crime, possession of offensive weapons, aggravated assault, recklessly endangering another person, terroristic threats, robbery, theft, and receiving stolen property. Appellant presented an alibi defense at trial and both he and his brother testified that appellant was at a picnic at the home of his brother during the period in which the attack at issue occurred. The jury rejected this defense when it found appellant guilty as charged.
Appellant presents the following issues for our review:
I. Whether appellant was denied effective assistance of counsel by virtue of his first counsel's failure to investigate appellant's claim of alibi prior to filing a notice of alibi defense.
II. Whether appellant was denied effective assistance of counsel by virtue of trial counsel's failure to secure the ...