The opinion
MONTGOMERY, Judge,
dissenting.
After carefully and thoroughly reviewing the record in this matter, I am convinced that the appellant is entitled to a new trial due to the ineffective assistance of counsel. Therefore, I respectfully dissent.
The appellant argues that trial counsel was ineffective in failing to object to a firearm demonstration in the jury’s presence and that post-trial counsel was also ineffective for failing to raise prior counsel’s ineffectiveness. In reviewing a claim of ineffective assistance, we must first determine whether the issue underlying the claim of ineffectiveness is of arguable merit, and, if so, whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client. Commonwealth v. Buehl, 510 Pa. 363 , 508 A.2d 1167 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599 , 235 A.2d 349 (1967). Finally, the petitioner must show that counsel’s ineffectiveness prejudiced his case. Commonwealth v. Pierce, 515 Pa. 153 , 527 A.2d 973 (1987).
*537 I recognize that any in-court demonstration is subject to the trial court’s discretion and, therefore, our review is limited accordingly. Commonwealth v. Kenon, 333 Pa.Super. 366 , 482 A.2d 611 (1984). However, in exercising its discretion, the trial court must determine whether the demonstration is relevant and must also determine if the probative value of the demonstration is outweighed by the potential prejudice to the defendant. Id. The demonstration was, arguably, relevant. However, assuming that relevance is not a concern, I cannot agree that the probative value of the demonstration which took place during the trial of this case outweighed the prejudice to the appellant. In my opinion, a review of the record compels a conclusion contrary to that reached by the majority.
The Commonwealth’s expert testified that “[he would] demonstrate the force needed to cause the primer to discharge, ... you will see a spit of flame coming out ... you will also hearefsic] a loud noise.” (Trial Transcript at 203) When the court inquired if the demonstration was safe, the witness responded: “Yes. I’ll have it aimed down toward the floor, and again, you’ll see the spit of flame, and you’ll hear the sound. Sometimes these primers by themselves will have a very large sound.” (Id.) Under the circumstances, I believe the demonstration fell outside the permissible range. Exposing the jury to the sound and “spit of flame” as the purported murder weapon was fired in their presence clearly outweighed, to the appellant’s prejudice, any potential probative value of this demonstration. For this reason, I would find trial counsel was ineffective as I am unable to arrive at a single possible explanation justifying counsel’s failure to object to the demonstration; nor can I imagine any reasonable basis in counsel’s failure designed to effectuate the appellant’s interest. Likewise, I would find post-trial counsel ineffective for failing to raise the issue.
For these reasons, I would vacate the judgment of sentence and remand for a new trial.