The opinion
MONTEMURO, Judge,
dissenting:
Because I would agree with appellant that his trial counsel was ineffective in failing to secure, and produce at trial, hospital records allegedly favorable to the appellant’s claim of self-defense, I respectfully dissent.
In order to fully understand this allegation of ineffectiveness, it is necessary to briefly recount the circumstances leading to appellant’s conviction. The appellant was employed by the City of Philadelphia as a shop foreman at a garage on Delaware Avenue, between Snyder Avenue and Jackson Street. The complainant, Arthur Hoffman, was a maintenance mechanic employed at the same location. According to the evidence adduced at the evidentiary hearing, there was some animosity between the men stemming from an argument on February 9, 1978, which resulted in the police being called to the garage. Sometime after February 9, the appellant had blocked off a fire exit from the boiler room with approximately twenty (20) lockers. Hoffman took exception to this action because he felt it was a dangerous condition. Hoffman testified that on February 27, 1978, he went to the appellant’s work area in “Bay Three” of the garage to ask him to remove the lockers. As Hoffman approached, the appellant turned and ran through a large doorway into “Bay Two.” Hoffman followed him partway into “Bay Two.” As Hoffman reached the doorway, he saw the appellant opening the large overhead door (which was electric and opened by pressing a switch). When Hoffman was approximately forty feet away from the appellant, he turned and shot Hoffman with a .22 magnum pistol.
*396 The appellant’s testimony is somewhat different. He related that on the afternoon of February 24, 1978, he was at his work area in the garage when Hoffman approached him. Hoffman was shouting and swearing, and was carrying an umbrella in one hand and something heavy wrapped in a shopping bag in the other.' The appellant turned and as he was about to walk away, he felt a sharp pain in his leg which caused him to stumble and fall. He got up, ran into “Bay Two” and pushed the switch to open the large overhead door. As he did so, he fell again. He turned again and saw Hoffman, now approximately twelve feet away, leap into the air and lunge toward where the appellant lay prone. At that point, the appellant drew the pistol from his belt and fired once. He stated that Hoffman ran away, still holding the umbrella and the object wrapped in the bag. The police never found either object.
This court, in determining whether a criminal appellant was afforded effective assistance of counsel will make an independent review of the record, Commonwealth v. Strader, 262 Pa.Super. 166 , 396 A.2d 697 (1978), and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599 , 235 A.2d 349 (1967); Commonwealth v. Gray, 297 Pa.Super. 123 , 443 A.2d 330 (1982). Counsel will be deemed effective if this court determines that the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, supra; Commonwealth v. Johnson, 280 Pa.Super. 309 , 421 A.2d 737 (1980). However, it is only where the claim is of arguable merit that we must make an inquiry into counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259 , 372 A.2d 687 (1977).
The appellant alleges that trial counsel was ineffective in failing to secure hospital records to produce as evidence at trial. The appellant contends that these records would show that he was treated for injuries sustained in the confrontation with Hoffman. At the evidentiary hearing, *397 the appellant testified that on March 16, 1978 [actually March 6, 1978], he entered John F. Kennedy Hospital for treatment of his injured leg, and that he remained there for two and one-half weeks. He further testified that he had executed a medical release to enable counsel to secure the records of his treatment.
The appellant’s trial counsel, Stanley Bashman, Esquire, also testified. He stated that the appellant had informed him of the hospital stay and had shown him some type of record; however, he did not think the hospital records were necessary. Counsel stated two grounds for his decision.
First, he stated that, on the morning of appellant’s trial, he asked Mr. Rusek, the assistant district attorney, if either the umbrella or the bag containing a heavy object had been found at the scene. Upon receiving a negative response, counsel decided to “soft-pedal the issue completely, just have him say what he said and that’s it.” (N.T. October 30, 1980, at 99, 100). Counsel’s second reason was stated as follows: “I think they were a week or two later than the event, and that troubled me too.” (N.T. October 30, 1980, at 114). At trial, no mention was made of the appellant’s two and one-half week hospital stay. 1
I find that the appellant’s claim is of arguable merit in that the alleged medical records are relevant to the issue of whether the appellant acted in self-defense. Commonwealth v. Mabie, 467 Pa. 464 , 359 A.2d 369 (1976). Moreover, trial counsel’s explanations do not justify his failure to investigate the medical records or to obtain them for trial.
*398 I begin with the proposition that the appellant’s defense was predicated upon a justifiable use of deadly force. Deadly force, as defined at 18 Pa.C.S.A. § 501, is “[f]orce which, under the circumstances in which it is used, is readily capable of causing death or serious bodily injury.” The use of deadly force for self-protection is limited by the provisions of 18 Pa.C.S.A. § 505(b)(2), the requirements of which were explained by the supreme court in Commonwealth v. Brown, 491 Pa. 507 , 421 A.2d 660 (1980):
To avail oneself of deadly force for self-protection, three factors must be found to exist. First, the actor must have reasonably believed himself to be in imminent danger of death or serious bodily harm, and that it was necessary to use deadly force against the victim to prevent such harm. Second, the actor must have been free from fault in provoking or continuing the difficulty which resulted in the slaying. Third, the actor must have violated no duty to retreat. 18 Pa. C.S.A. § 505; Commonwealth v. McGuire, 487 Pa. 208 , 409 A.2d 313 (1979); Commonwealth v. Black, [ 474 Pa. 47 , 376 A.2d 627 (1977)]; Commonwealth v. McComb, 462 Pa. 504 , 341 A.2d 496 (1975).
Id., 491 Pa. at 512 , 421 A.2d at 662.
Herein, if the appellant’s story is given credence, it meets the requirements set forth in Brown . The appellant asserts that: (1) he was attacked without warning and without provocation by Hoffman who was in an enraged state; (2) Hoffman was armed with some sort of disguised weapon; (3) Hoffman struck the appellant with that weapon, knocking him to the ground; (4) the appellant retreated until he fell [due to his injured leg]; and (5) the appellant, as he lay prone on the garage floor, shot Hoffman, who was still carrying the “weapons” lunging toward him.
The appellant’s failure to prevail on his claim of self-defense is attributable to the trial judge’s determination that Hoffman’s version of the incident was more credible. If the appellant had been able to demonstrate that he sustained an injury consistant with his version of the incident, a different *399 result might have been reached. The medical records, 2 had they been investigated and introduced at trial, might have demonstrated the type of injury and its severity consistent with the appellant’s story. Therefore, they were relevant to his claim of self-defense and appellant’s contention that counsel was ineffective in failing to investigate and introduce them is of arguable merit.
With regard to the question of whether trial counsel had a reasonable basis for his inaction, I find the reasons advanced by counsel to be inadequate.
Counsel contended that he did not investigate or obtain the records because of a discussion he had with the assistant district attorney on the morning of appellant’s trial wherein he learned that the police never found the umbrella or heavy object. This excuse is objectionable on several grounds. First, whether or not the police located the alleged weapons was irrelevant to the need to obtain the medical records. There are many possible reasons why the weapons might not have been located; not the least of which is that there is no indication that anyone ever looked for them. Thus, even if the alleged weapons were not located, the medical records would have supported the appellant’s defense.
Another reason that I find counsel’s excuse unreasonable was his reliance on the statement of the assistant district attorney that no weapons were found. Clearly, this reliance is no substitute for personal investigation. As stated in Commonwealth v. Mabie, supra, 467 Pa. at 474 , 359 A.2d at 374 :
... First, counsel discounted the defense of self-defense, as well as the possible mitigation of the crime, without questioning witnesses other than the defendant and his brother and without attempting to confirm Mabie’s account of the incident through the hospital records. Counsel testified that he did so based on information contained *400 in the Commonwealth’s file to which he was given access. However, ‘[t]he Constitution does not contemplate that prisoners shall be dependent upon government agents for legal counsel and aid, however, conscientious and able those agents may be. Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer. It is this kind of service for which the Sixth Amendment makes provision.’ Von Moltke v. Gillies, supra, 332 U.S. at 725, 68 S.Ct. at 324. Further, the prosecution’s file is not a substitute for an independent investigation by defense counsel. Since discussions with witnesses and a review of Mabie’s hospital records may have established a defense and the pursuit of such a possible defense was curtailed only upon the basis of information in the Commonwealth’s file, counsel’s decision not to investigate either or both avenues cannot be said to have a reasonable basis designed to effectuate his client’s interest. Cf. Commonwealth v. Smith, 442 Pa. 265 , 275 A.2d 98 (1971).
Furthermore, by waiting until the very brink of trial to make any inquiry, counsel effectively precluded any chance of obtaining the records [should he have decided at that point they were necessary], let alone giving the records-the proper analysis needed to prepare for their use at trial. Thus, the first reason advanced by counsel provides no basis for failure to investigate the records.
The second reason advanced by counsel — i.e., that he was disturbed by the time lag between the criminal incident and the onset of hospitalization — also fails to justify his omission. The case herein involved a confrontation between two men, each claiming the other as the aggressor. The appellant, however, appears in a bad light because of his use of a weapon which caused a serious injury to the complainant. Absent some supporting evidence, the appellant’s assertion that he acted in self-defense is little more than a bald assertion worthy of little credence, especially because appellant’s use of a gun in response to the situation is facially an excessive use of force. The medical records would support *401 appellant’s allegation that his use of force was in response to an attack by the complainant. The time lag spoken of by counsel goes only to the weight which the court might put on the evidence. Thus, I similarly conclude that this reason fails to adequately explain counsel’s failure to investigate and to obtain the medical records.
Therefore, I would find that counsel was ineffective.
Consequently, I would vacate the judgment of sentence and remand the case for a new trial so that the appellant can be afforded the assistance of effective counsel.
. However, I note the following exchange which took place after cross-examination of the appellant:
THE COURT: I have just a few.
Sir, you have indicated that you injured your leg, and I assume, or I have the impression, that you were treated for it; is that correct?
THE WITNESS: I was hospitalized.
THE COURT: You were hospitalized after this matter?
THE WITNESS: I had medical treatment that night while I was incarcerated.
At eight ten I was taken to Saint Mary’s, and my leg was x-rayed, and they found no broken bones. And I was — they—and I was taken down and locked up.
(N.T. June 29, 1978, at 77).
. I note that the medical record in question was introduced at the evidentiary hearing below, but was not made part of the appellate record.