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COMMONWEALTH PENNSYLVANIA v. JAMES ALLEN GARDNER (07/14/78)

decided: July 14, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES ALLEN GARDNER, APPELLANT



No. 115 May Term, 1977, Appeal from Judgment of Sentence entered December 5, 1977, Court of Common Pleas, Criminal, York County, at No. 247 C.A. January Term, 1975.

COUNSEL

Raymond R. Smith, York, for appellant.

Sheryl Ann Dorney, Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., concurs in the result. Pomeroy, J., files a dissenting opinion.

Author: Roberts

[ 480 Pa. Page 9]

OPINION OF THE COURT

A jury convicted appellant, James Gardner, of murder of the first degree. Appellant was represented at trial by retained counsel. The trial court denied appellant's post-verdict motions. Appellant, represented again by trial counsel, contends that (1) the verdict is not supported by sufficient evidence; (2) an incriminating statement he gave police should have been suppressed; (3) the system of selecting jurors at his trial unconstitutionally excluded blacks; and (4) trial counsel was ineffective for failing to object to the court's jury charge. We remand to afford appellant an opportunity to select new counsel or, if eligible, for appointment of counsel. We therefore do not reach the merits of the issues raised.*fn*

Appellant did not raise ineffectiveness of trial counsel on post-verdict motions. He has not waived that issue, however, because he was represented on post-verdict motions by his trial counsel. Failure to raise a claim of ineffectiveness of trial counsel does not constitute a waiver

[ 480 Pa. Page 10]

    of the issue where an appellant is represented by trial counsel. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978).

When an appellant raising ineffectiveness of appointed trial counsel is represented on appeal by the same counsel, he is entitled to a remand for appointment of new counsel not associated with trial counsel unless ineffective assistance of counsel is clear on the face of the record. Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Fox, supra; Commonwealth v. Sherard, 477 Pa. 429, 384 A.2d 234 (1977); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977). "In such circumstances, it cannot 'be assumed that appellate counsel will provide the zealous advocacy to which an appellant is entitled.'" Commonwealth v. Patrick, 477 Pa. at 287, 383 A.2d at 936, quoting Commonwealth v. Fox, 476 Pa. at 479, 383 A.2d at 200.

No less is an accused entitled to this "zealous advocacy" when he has obtained private counsel. The accused enjoys the same right to effective representation whether his counsel is appointed or privately retained. Commonwealth ex rel. Neal v. Myers, 424 Pa. 576, 227 A.2d 845 (1967); Commonwealth ex rel. Stevens v. Myers, 424 Pa. 377, 227 A.2d 649 (1967); accord, Moore v. United States, 432 F.2d 730 (3rd Cir. 1970); Mason v. Balcom, 531 F.2d 717 (5th Cir. 1976), reh. denied, 534 F.2d 1407 (1976); People v. Virgil, 54 Ill.App.3rd 682, 12 Ill.Dec. 451, 370 N.E.2d 74 (1977); Bowen v. State, 263 Ind. 558, 334 N.E.2d 691 (1975); State v. Moss, 185 Neb. 536, 177 N.W.2d 284 (1970); Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975); Newton v. State, 456 S.W.2d 939 (Tex.Ct.Cr.App.1970); In re King, 133 Vt. 245, 336 A.2d 195 (1975); State v. Hess, 12 Wash.App. 787, 532 P.2d 1173 (1975), aff'd, 86 Wash.2d 51, 541 P.2d 1222 (1975); State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1 (1973); ABA ...


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