Appeal from judgment of sentence of Court of Common Pleas of Northampton County, Oct. T., 1972, No. 355, in case of Commonwealth of Pennsylvania v. Frederick Caesar Coleman.
Margaret H. Poswistilo, Assistant Public Defender, for appellant.
Allan B. Goodman, Assistant District Attorney, and Charles H. Spaziani, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.
[ 235 Pa. Super. Page 381]
On February 13, 1973, appellant was tried before a jury for unlawful possession and delivery of heroin. When the jury said, after four hours and twenty-six minutes of deliberation, that it was unable to agree on a verdict, the trial judge declared a mistrial. Defense counsel did not object to the declaration of a mistrial, nor did he object to the holding of a second trial on February 26, 1973. At the second trial appellant was found guilty by a jury of the same charges. After post-trial motions were dismissed, appellant was sentenced, and the matter now before us is a direct appeal from that sentence.
Appellant's first argument is that he was placed in double jeopardy by being tried for the same offense after the first trial resulted in a mistrial. Stated in this
[ 235 Pa. Super. Page 382]
way, the argument will not be considered. As noted, appellant's counsel did not protect the record, either by objecting to the declaration of a mistrial at the first trial or to the holding of the second trial. Further, he did not argue double jeopardy in post-trial motions. Thus the argument cannot be made now. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). However, appellant has made the argument not simply by itself but also in the context of a claim that he was denied the effective assistance of counsel. Specifically, he states in his brief to us that "[b]ecause trial counsel failed to object to the holding of the second trial, his action may have hurt his client. However, a criminal defendant is entitled to effective assistance of counsel."
It has recently been held that in certain circumstances a defendant may argue on appeal that he was denied the effective assistance of counsel. One of these circumstances will arise where the defendant's appellate counsel is different than his trial counsel. In that event, if the grounds upon which the claim of ineffective assistance of counsel is made to appear of record, not only may appellate counsel argue in effective counsel, if he does not, the argument will be considered waived and it may not be made later, as for example in a proceeding under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1, et seq., 19 P.S. § 1180-1 et seq. (Supp. 1974). Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1974). Sometimes the appellate court will be able to determine from the record whether in fact counsel was ineffective. Commonwealth v. Dancer, supra; Commonwealth v. Learn, 233 Pa. Superior Ct. 288, 335 A.2d 417 (1975). Other times the appellate court will not be able to make such a determination, in which case the record will be remanded for a hearing. Commonwealth v. Strachan, 460 Pa. 407, 333 A.2d 790 (1975); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).
[ 235 Pa. Super. Page 383]
In the present case, appellant's counsel before us is different than his trial counsel. Further, the grounds upon which the claim of ineffective counsel is made do appear of record, i.e., that a mistrial should not have been declared at the first trial and therefore counsel should have objected to the holding of the second trial. Accordingly, we must examine the record to see if we can determine whether in fact trial counsel was ineffective.
In undertaking this examination it should be borne in mind that appellant's claim is that it was counsel at his second trial who was ineffective. The question to be decided, therefore, is whether the trial judge at the first trial erred in declaring a mistrial; for if he did not, counsel at the ...