No. 140 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Erie County, at No. 1620 of 1976
Michael R. Cauley, Second Asst. Public Defender, Erie, for appellant.
Shad Connelly, Asst. Dist. Atty., Erie, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., filed a concurring opinion.
This appeal is from the judgment of sentence of life imprisonment imposed upon Allen Jerome Brown in Erie County following his conviction by a jury of murder of the first degree.
In this appeal Brown is represented by new counsel, that is, counsel who did not represent him at trial. One of the principal assignments of error maintains Brown was denied a fair trial because of the ineffectiveness of his counsel.*fn* This issue was not presented to or considered by the trial court, and on the record presented we find it impossible to intelligently evaluate the merits of this complaint. The record will, therefore, be remanded to the trial court for an evidentiary hearing and determination as to whether trial counsel were ineffective in any respect, and, if so, whether a new trial is mandated. Cf. Commonwealth v. Twiggs, 406 Pa. 105, 331 A.2d 440 (1975).
The judgment of sentence is vacated, and the record is remanded for further proceedings. If it is found that trial counsel were ineffective, a new trial should be ordered. If not, judgment of sentence should be reimposed. In the latter event, Brown may file a new appeal.
POMEROY, Justice, concurring.
Appellant asserts a number of instances of trial counsel's ineffectiveness. My review of these claims convinces me that there is arguable merit in several of them and that failure of trial counsel to take action or pursue a different tactic could, absent some reasonable basis for counsel's action, add up to constitutional ineffectiveness. On the basis of the present record, however, it is not possible to ascertain the purpose for counsel's omissions. ...