¶1dissenting.
¶2I dissent. Appellant claims trial counsel was ineffective for failing to obtain the testimony at trial of a Mr. Dapp. It *250is clear, as the majority opinion itself states, that “Mr. Dapp’s testimony was crucial to appellant . . . [and] may well have been sufficient to convince the jury that the crime did not rise to murder of the first degree.” Majority opinion at 453 n. 1. Moreover, trial counsel admitted at the PCHA hearing, in testimony quoted by the majority, that when Mr. Dapp did not appear at trial, trial counsel concluded that he could not seek a continuance in order to obtain the missing witness’s appearance because of his own failure to subpoena Mr. Dapp. Though counsel did try to make the best of a bad situation by introducing the testimony given by Mr. Dapp at the preliminary hearing, there is no doubt, as trial counsel’s testimony indicates, that this witness’s appearance at trial was crucial to appellant’s defense. Because trial counsel’s own neglect prevented him from effecting his own fundamental trial strategy, I must conclude that counsel was ineffective. Accordingly, I would grant appellant a new trial.
¶3dissenting.
¶4In my judgment, trial counsel’s representation in this case was indeed ineffective; and, therefore, I cannot agree with the majority’s rejection of appellant’s claim.
¶5Concededly, the testimony of Mr. Dapp’s was critical to the success of the case of the defense. Under these circumstances, it was inadequate preparation for the defense to rely upon the Commonwealth to take the necessary steps to assure that witness’s presence at trial. Nor do I believe that he can now assert his dereliction in subpoenaing or taking other efforts to assure the presence of the witness as an excuse for not seeking a continuance when it became apparent that the witness would not be present. I believe that the following excerpt from the testimony of trial counsel during the post conviction hearing in this matter virtually concedes ineffectiveness.
“Q. Based on the trial at that time, you did what you felt was best for your client, which was reading the preliminary testimony into the record?
*251A. I felt it was a poor alternative but it was better than none.”
¶6In effect, this testimony states that because of counsel’s inadequate efforts to assure the witness’s presence, his client’s position was appreciably weakened. I cannot conclude, as the majority does, that this type of representation satisfies constitutional standards of advocacy.