dissenting.
In 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.
Concededly, 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.”
In 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.
EAGEN, C. J., joins in this opinion.