concurring and dissenting:
On April 25,1978, Earl Paige, Jr. pleaded guilty to charges of robbery, burglary, conspiracy, possession of instruments of crime, aggravated assault, forgery, and credit card violations. On June 27, 1978, sentences totaling fourteen to thirty years imprisonment were imposed. Appellant did not petition to withdraw his guilty plea, and did not take a direct appeal, but filed a petition on March 15,1979 (and an amendment thereto on April 11, 1979) under the Post Conviction Hearing Act,1 alleging that his trial counsel had been ineffective in failing to assist him in withdrawing the guilty plea or in taking a direct appeal, despite appellant’s requests for such help, and that the guilty plea was invalid because 1) the record did not indicate appellant’s understanding of the factual basis for the plea, 2) the elements of the crimes were not adequately explained to appellant, and 3) trial counsel induced the plea by assuring appellant that he would receive probation and/or placement in an in-patient drug program if he pleaded guilty.
A hearing on the petition was scheduled for May 11, 1979. On that date, the attorney for the Commonwealth appeared and stated that he wanted to call appellant’s trial attorney as a witness, but that the attorney was recovering from a major operation and was unable to be there. The Commonwealth’s attorney presented the court with a copy of a petition to dismiss the appeal, without a hearing, on the basis of waiver. The court granted appellant’s request for time to prepare an answer to the Commonwealth’s petition, and continued the matter. On May 24,1979, the lower court dismissed appellant’s PCHA petition without a hearing. Appellant now raises on appeal to our court essentially the same issues he raised in his PCHA petition.
At the guilty plea colloquy on April 25,1978, the charge of aggravated assault was explained to appellant by the attorney for the Commonwealth as follows: “You are charged with aggravated assault. Aggravated assault is where one attempts to or does cause serious bodily injury to another or *146by physical menace puts that person in fear of imminent serious bodily injury.” (Emphasis added). The second part of this explanation was incorrect. In order to be found guilty of aggravated assault, a person must attempt to cause or actually cause bodily injury to someone. It is not sufficient to merely place the victim in fear of imminent serious bodily injury.2 In addition, the factual basis for the charge was the testimony of one of the victims that appellant had struck the other victim with a gun. Appellant repeatedly denied that he had struck anyone with a gun.3 It is thus apparent that appellant had meritorious arguments for a motion under Pa.Rule of Criminal Procedure 321 challenging the validity of his guilty plea with respect to the aggravated assault charges, and for a direct appeal if such motion were unsuccessful. These issues, along with issues regarding the validity of the plea with respect to the other charges, may have been waived by appellant’s failure to file a motion challenging the validity of the plea (such motion being required by Pa.Rule of Criminal Procedure 321) or by appellant’s failure to take a direct appeal. Appellant alleges, however, that he asked his trial counsel to assist him in withdrawing his guilty plea, and that counsel was ineffective for not assisting him. This case should therefore be remanded for an evidentiary hearing to determine the truth of this allegation. Commonwealth v. Conley, 232 Pa.Super. 432, 335 A.2d 721 (1975). If the court found that appellant did request that an appeal be taken, but that his attorney failed to file the appeal, there would be no waiver and the court would then have to proceed to the merits of appellant’s arguments.
*147The Majority finds that appellant did not plead guilty to the charge of aggravated assault, that the lower court therefore did not have the power to impose a sentence on that charge, and that the sentence was therefore “illegal” and apparently subject to challenge at any time. Although the record clearly reveals appellant’s disagreement with the factual basis for the plea to aggravated assault, and reveals the inaccuracy of the explanation of the elements of that offense, I disagree with the Majority’s statement that appellant did not actually plead guilty. The lower court stated (as noted in the Majority’s Opinion): “I am accepting the plea to everything that she [the victim-witness] said. Is that satisfactory to you. It is not saying you did it”. Appellant replied, “All right ”. (Emphasis added). The plea may not have been voluntarily and understanding^ entered, but it does appear that appellant agreed to plead guilty.
Even assuming that a plea was not entered, I cannot agree with the Majority’s disposition of this case, since appellant has not raised on appeal the specific issue decided by the Majority. Appellant—evidently conceding that a plea was entered—argues “that the guilty plea was not understanding^ and voluntarily entered in that the elements of the crimes charged were not adequately explained to appellant, nor was the relationship between appellant’s actions and the elements of the crimes charged adequately explained” and also “that the guilty plea was not understanding^ and voluntarily entered in that there was no on-the-record exploration of appellant’s understanding and agreement on the factual basis for the plea”. Appellant does not argue either that he did not enter a plea or that his sentence was illegal. In Wiegand v. Wiegand, 461 Pa. 482, 485, 337 A.2d 256, 257 (1975), the Supreme Court reversed our Court’s ruling that sections 11 and 46 of the Divorce Code were unconstitutional, stating: “Sua sponte consideration of issues deprives counsel of the opportunity to brief and argue the issues and the court of the benefit of counsel’s advocacy”. It would seem that the Majority is now deciding an issue that has not been raised in our Court.
*148This case should be remanded for a hearing to determine whether or not appellant waived his right to appeal. If the court found that there was no waiver, then it would be obligated to consider the arguments concerning the validity of the plea.
. 19 P.S. § 1180-1 et seq.
. The Crimes Code provides, 18 Pa.C.S. § 2702(a):
A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such bodily injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life ....
. Although it is not entirely clear, it seems that appellant was denying having used a gun to hurt the victim, rather than denying having injured the victim at all. (Neither the complaint nor the information specifies that appellant struck the victim with a gun).