No. 638 October Term, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas of Lancaster County, Pennsylvania, Criminal Division, at No. 1751 of 1973.
William R. Wheatly, Lancaster, for appellant.
Louise G. Herr, Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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Appellant, Roger Worth Taggart, was convicted by a jury on January 24, 1974 of burglary and theft by unlawful taking or disposition. Appellant was then sentenced to four to eight years in prison. A Post-Conviction Hearing Act petition was filed by appellant, resulting in an award of a new trial.
Harold W. Budding, a member of the Lancaster County Public Defender's Office, was appointed to represent appellant at this second trial. Appellant was retried before a jury on November 20, 1975 and found guilty of burglary. Immediately following the verdict, appellant was called before
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the court for sentencing. In the colloquy advising appellant of his right to appeal pursuant to Pa.R.Crim.P. 1123, the court warned appellant that by standing for sentence he was waiving the right to file motions in arrest of judgment and for a new trial. Appellant told the court that he was aware of that fact. At all times during the pre-sentence colloquy appellant was represented by trial counsel. The court sentenced appellant to serve three to six years in prison. Appellant then advised the court that he wanted to take an appeal.
Appellant's appeal was perfected by Edward F. Browne, Jr., also a member of the Lancaster County Public Defender's Office. After the filing of that appeal, appellant advised Mr. Browne that he intended to raise the issue of ineffective assistance of trial counsel. Because both trial and appellate counsel were members of the same office, appellate counsel felt that a conflict of interest was involved, so he petitioned this court for leave to withdraw as counsel for appellant. Permission was granted by this court on March 9, 1976. On March 30, 1976 William R. Wheatly was appointed by the lower court to represent appellant in this appeal.
Appellate counsel then filed with this Court a petition to remand for an evidentiary hearing on the ineffective assistance of counsel issue which was denied by per curiam order on December 8, 1976. However, in his appeal brief before this Court appellant again requested that his case be remanded for an evidentiary hearing on the claim of ineffective assistance of counsel. For the reasons set forth below, we now grant appellant's request for an evidentiary hearing.
The Commonwealth argues that appellant waived the right to raise the issue of ineffective assistance of counsel on direct appeal because appellant waived his right to file post-verdict motions. It is the Commonwealth's position that appellant should first have raised this issue in post-verdict motions and that his failure to do so precludes his raising the issue of ...