Appeal from the Order of the Superior Court dated July 15, 1986, at No. 1339 Pittsburgh, 1984, which vacated the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, dated September 17, 1984 at No. CC8309134. Pa. Super. , 515 A.2d 616 (1986)
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kemal Alexander Mericli, Asst. Dist. Atty., Pittsburgh, Pennsylvania., for appellant.
John H. Corbett, Jr., Chief-Appellate Div., Melaine Shannon Rothey, Appellate Counsel, Office of the Public Defender, Howard B. Elfling, Pittsburgh, Pennsylvania., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Hutchinson, Former Justice did not participate in the decision of this case.
The issue before the Court in this case is whether trial counsel provided ineffective assistance of counsel by failing to request a jury instruction on self-defense.
Appellee James Butler was found guilty by a jury of aggravated assault*fn1 and a violation of the Uniform Firearms Act*fn2 on May 9, 1984. These charges arose from appellee shooting Gerald Colwell in the back on August 9, 1983. Appellee's post-trial motions were denied on June 18, 1984, and appellee was sentenced on September 17, 1984 to a term of imprisonment of 5 to 10 years on the conviction for aggravated assault, and a consecutive term of probation of 5 years for the firearms conviction. On direct appeal in Superior Court appellee raised the following claims of error:
I. The Commonwealth failed to prove [appellee] guilty of aggravated assault since they failed to disprove his claim of self-defense.
II. A self-defense instruction should have been included in the jury charge; trial counsel was ineffective for failing to request such a charge.
Superior Court, by per curiam order, vacated the judgment of sentence on the conviction for aggravated assault and
remanded to the trial court for an evidentiary hearing. In the memorandum opinion in support of its order, Superior Court explained that it rejected appellee's first claim, but found that appellee "may have been entitled to an instruction on self-defense" and remanded so that the trial court could determine whether trial counsel had a reasonable basis for failing to request such an instruction, 515 A.2d 616. Appellant Commonwealth of Pennsylvania filed an application ...