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COMMONWEALTH PENNSYLVANIA v. GREGORY STEWART (09/12/88)

filed: September 12, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
GREGORY STEWART, APPELLEE



Appeal from the Order entered August 13, 1987, in the Court of Common Pleas of Philadelphia County, Criminal, No. 83-11-2236-2238.

COUNSEL

Catherine Marshall, Assistant District Attorney, Philadelphia, for Com.

Frank DeSimone, Philadelphia, for appellee.

McEwen, Olszewski and Cercone, JJ. McEwen, J., concurs in the result.

Author: Olszewski

[ 377 Pa. Super. Page 532]

Appellant, the Commonwealth, appeals from the trial court's order granting a new trial to appellee, Gregory Stewart. The Commonwealth claims that the trial court erred in finding that defense counsel was ineffective for: (1) failing to present a defense at trial based upon a psychiatric disorder which was triggered by Stewart's drunken state at the time of the offense; and (2) failing to present evidence of Stewart's good character. We agree with the Commonwealth's contentions that trial counsel did not render ineffective assistance and, accordingly, we reverse the trial court's order.

Charges of robbery, recklessly endangering another person, aggravated assault, and simple assault were filed against appellee following an attack on Ronald Johnson, a cab driver, in Philadelphia. According to the record, in the early morning hours of November 9, 1983, the victim received a call to pick up a fare. When he arrived at the designated address, no one responded to his inquiry. Stewart, who was standing nearby, approached the cab and asked to be taken to a certain destination. En route, Stewart told the victim to stop the cab. Stewart then alighted from the vehicle and briefly spoke to a woman. Shortly thereafter, he returned to the cab and it proceeded on its way.

Stewart sat directly behind the victim in the cab. As the victim was driving, Stewart grabbed him from behind, covered his mouth and said "stick-up." N.T. 4/17/84 at 41. A struggle ensued and the victim let go of the steering wheel, allowing the cab to travel down a hill without control. As the victim struggled to free himself from Stewart's grasp, he saw, in the rear view mirror, that Stewart was clenching

[ 377 Pa. Super. Page 533]

    a long, shiny object. The victim struggled to avoid being injured and turned completely around in his seat to directly confront Stewart. As the cab crashed into an iron gate, Stewart maintained his hold on the victim. For five minutes, the two men struggled in the cab while the victim screamed for help. Eventually, two passers-by responded to the victim's screams and attempted to pull Stewart off the cab driver. They were unsuccessful until a third passerby rendered aid.*fn1 The police arrived shortly thereafter and Stewart was placed under arrest.

Following a jury trial on April 17-18, 1984, Stewart was convicted of aggravated assault, recklessly endangering another person, and two counts of robbery. Post-verdict motions were denied and Stewart was sentenced to a term of five-to-ten years' imprisonment. Stewart secured the representation of new counsel and filed an appeal to this Court claiming, inter alia, that trial counsel was ineffective for failing to present evidence of his mental state. This Court, unable to determine from the record whether trial counsel had a reasonable basis for failing to introduce psychiatric evidence as to Stewart's mental state at the time of the offense, remanded the case to the trial court for an evidentiary hearing on counsel's ineffectiveness. Pursuant to this Court's order, the trial court held a hearing on July 30, 1987. The trial court subsequently ordered that Stewart receive a new trial, finding that trial counsel was ineffective for failing to present a psychiatric defense and for failing to present character testimony. This appeal followed.

Appellant, the Commonwealth, contends that the trial court erred in finding that defense counsel rendered ineffective assistance of counsel. Our Supreme Court has explained the appellate standard of review ...


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