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COMMONWEALTH PENNSYLVANIA v. ANTHONY PATRICK (03/23/78)

SUPREME COURT OF PENNSYLVANIA


decided: March 23, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY PATRICK, APPELLANT

COUNSEL

Calvin S. Drayer, Jr., Norristown, George B. Ditter, Hendricks, for appellant.

William T. Nicholas, Dist. Atty., Eric J. Cox, Asst. Dist. Atty., Chief, Appellate Division and Ronald T. Williamson, Asst. Dist. Atty., Norristown, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Pomeroy, J., filed a dissenting opinion.

Author: Roberts

[ 477 Pa. Page 286]

OPINION OF THE COURT

Appellant Anthony Patrick was convicted by a jury of selling the drug hydromorphone to an undercover agent in violation of the Controlled Substance, Drug, Device and Cosmetic Act.*fn1 The Superior Court affirmed appellant's conviction. This Court granted allocatur. Appellant contends that (1) trial counsel was ineffective for failing to raise timely appellant's claim that he was denied the right to a speedy trial under Pa.R.Crim.P. 1100 and the Sixth Amendment, (2) appellate counsel was ineffective for failing on appeal to the Superior Court to allege ineffectiveness of trial counsel, (3) certain statements of the district attorney during summation deprived appellant of a fair trial, and (4) the court improperly permitted introduction of expert testimony based on hearsay.*fn2 We remand for appointment of new counsel. We therefore do not reach the merits of the issues raised.

Appellant on this appeal is represented by the same counsel who represented him on appeal to the Superior Court, a member of the Montgomery County Public Defender's office which represented him at trial. When an appellant raising ineffectiveness of trial counsel is represented by appointed counsel from the same office which represented him at trial, the proper procedure is to remand to allow appointment of new counsel not associated with trial counsel.

[ 477 Pa. Page 287]

    under Pa.R.Crim.P. 1100 was even more so.*fn2

It is to be noted that appellant relies on three cases*fn3 that were not decided until after his trial was completed. It is well settled that such cases are not dispositive of the ineffectiveness claim. As we said in Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977) (citations omitted):

"We cannot impose upon trial counsel the qualities of a seer . . . For this reason, we examine counsel's stewardship under the standards as they existed at the time of his action; and counsel will not be deemed ineffective for failing to predict future developments in the law."

See also Commonwealth v. Dever, 243 Pa. Super. 87, 94 n.2, 364 A.2d 463, 466 n.2 (1976).

I think it plain from the circumstances of this case that a hearing will be required to determine the effectiveness of both trial and appellate counsel. I also believe that the least time-consuming method for appellant to secure relief, if any should be granted here, would be for him to be allowed to set in motion the procedures under the Post Conviction Hearing Act.*fn4 To do so will save both this Court and appellant from what may well be two more trips back to this Court, one to have the case remanded for hearing and

[ 477 Pa. Page 289]

    another if relief is denied after hearing. See Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). Since relief can be more speedily obtained through regular post-conviction procedure than through the use of this Court as a post-conviction court, I see no reason why this Court should retain jurisdiction in this case.*fn5

For the reasons above stated, I would dismiss this appeal as improvidently granted, permitting appellant to pursue relief under the Post Conviction Hearing Act.


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