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COMMONWEALTH PENNSYLVANIA v. ANTHONY BUTLER (12/29/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 29, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY BUTLER, APPELLANT

No. 2243 October Term 1977, Appeal from the Judgment of Sentence of the Philadelphia Court of Common Pleas, Criminal Division, No. 805/07 October Term, 1976.

COUNSEL

Raymond E. Kumor, Philadelphia, for appellant.

Edward G. Rendell, District Attorney, Philadelphia, for Com., appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting statement, in which Van der Voort, J., joins.

Author: Per Curiam

[ 262 Pa. Super. Page 321]

AND NOW, this 29th day of December, 1978, the petition to withdraw is denied. Counsel for appellant is directed either (1) to file an amended request for leave to withdraw that meets in all respects the requirements of notice to the appellant, see Commonwealth v. Liska, 252 Pa. Super. 103, 380 A.2d 1303, 1306 (1977), and to file a withdrawal brief that meets the description in Commonwealth v. Greer, 455 Pa. 106, 108-09, 314 A.2d 513, 514-15 (1974), or (2) to proceed with the appeal by filing an advocate's brief on the merits. In either case, counsel is to file a new brief and request, or new brief alone, within thirty (30) days, or risk sanctions.

[ 262 Pa. Super. Page 322]

SPAETH, Judge, dissenting:

Appellant's counsel on appeal was also his trial counsel. Consequently, if appellant raises his counsel's effectiveness before this court, we should not reject his claim, nor should we deem it waived because of appellant's failure to assert it in his posttrial motions. Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978). In the interests of judicial economy I should remand for the appointment of new counsel so that all of appellant's claims can be disposed of at one time.

19781229

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