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COMMONWEALTH PENNSYLVANIA v. CHARLES DUNCAN (11/03/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: November 3, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES DUNCAN, APPELLANT

No. 276 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Pennsylvania, at Nos. 1118, 1209 Criminal Division, 1976.

COUNSEL

Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.

Richard A. Lewis, Chief Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting statement, in which Hester, J., joins. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 260 Pa. Super. Page 37]

Appellant was convicted by a jury on September 21, 1976 of possession with intent to manufacture or deliver a controlled substance, conspiracy, and carrying a firearm without a license. Post-verdict motions were argued and denied. Appellant was sentenced to a term of not less than six nor more than fifteen years.

Appellant is represented by new counsel on appeal and he alleges that trial counsel was ineffective. When ineffective assistance of counsel is asserted, an independent review of the record must take place. Counsel's assistance is deemed constitutionally effective once it appears that counsel's course of action or inaction had some reasonable basis designed to effectuate his client's interest. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1977).

Appellant directs our attention to several unexplained omissions on trial counsel's part. Appellant points out that his counsel failed to move for the suppression of evidence (narcotics and a gun) taken from appellant's car, notwithstanding the fact that the information the searching officers had regarding appellant's possession of narcotics placed the narcotics in his apartment, not in his car. As appellant was apprehended on his way to his car, it is

[ 260 Pa. Super. Page 38]

    difficult to see how the search can be justified as being incident to his arrest. Furthermore, appellant argues that counsel also failed to object to the Commonwealth's presentation of testimony relating to prior drug dealings by appellant. These omissions raise a serious question as to counsel's effectiveness. As we do not know whether they had a reasonable basis, we will vacate the judgment of sentence and remand for an evidentiary hearing to determine whether appellant was denied the effective assistance of counsel. Commonwealth v. Pape, 246 Pa. Super. 1, 369 A.2d 780 (1977). If he was, a new trial shall be granted. If counsel's assistance was effective, the judgment of sentence shall be reinstated.

Judgment of sentence vacated and case remanded for further proceedings consistent with this opinion.

SPAETH, Judge, dissenting.

I should grant appellant a new trial.

19781103

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