Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 2716/2719 October Term, 1984.
Richard M. Meltzer, Philadelphia, for appellant.
Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Com., appellee.
Wieand, McEwen and Beck, JJ.
[ 375 Pa. Super. Page 160]
This is a direct appeal from a judgment of sentence imposed upon Augustine Lodis after a jury had found him guilty of aggravated assault*fn1 and possession of an instrument of crime.*fn2 New counsel was appointed after Lodis had been sentenced,*fn3 and, on appeal, Lodis alleges for the first time that trial counsel rendered ineffective assistance.
The facts of the case were summarized by the trial court as follows:
The Commonwealth presented evidence that on August 30, 1984, at approximately 7:00 P.M., the complainant, Michael Wuykiw, drove to the three hundred block of East Hunting Park Avenue in Philadelphia, as he customarily did, to allow his Doberman to run in a wooded area behind the Franklin Diner.
After about fifteen minutes, Wuykiw whistled for his dog, who returned and jumped into the car. As Wuykiw walked toward his car, the defendant, Augustine Lodis, came toward him carrying a 34" long pipe. He shouted: "Keep your mother fucking dog out of my property or I will blow your head off and your dog's head off." (N.T. 70, September 2, 1986.) An altercation ensued, first verbal and then physical. The dog jumped from the car and Lodis struck it several times with the pipe. Wuykiw retreated to his car, entering the driver's seat, while the dog limped into the rear seat. The defendant walked back to the Elisha Webb building at 315 East Hunting Park Avenue.
The complainant started his car and began driving away. The defendant came out of the building and ran toward Wuykiw's car. The complainant stopped, fearing
[ 375 Pa. Super. Page 161]
that the defendant would run in front of the auto. The defendant ran up to the front passenger side of the car, thrust a gun halfway through the window and fired, striking the complainant in the neck. The dog was still in the back seat.
The complainant lost control of the car, which rolled across Hunting Park Avenue and struck another moving vehicle. Wuykiw saw Lodis run back into the Elisha Webb building.
The police arrived within minutes. After receiving information from the complainant, members of the Police Stake -- Out Unit broke into the warehouse and after locating the defendant as he was coming out of a shower, placed him under arrest.
Kenneth Curry testified as a Commonwealth witness that at the time in question he was working at an Arco station across the street from 315 East Hunting Park Avenue. He saw a man leaning into a car parked on or near the Elisha Webb lot. There was a man in the driver's seat. Curry assumed that the two were talking. He looked away and about thirty seconds later heard a noise which he presumed was a backfire. He then saw the car coasting from the parking lot toward the street ...