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COMMONWEALTH PENNSYLVANIA v. NATHANIEL HARRISON (02/22/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: February 22, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
NATHANIEL HARRISON, APPELLANT

No. 3050 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at No. 20 July Term, 1978

COUNSEL

John W. Packel, Assistant Public Defender, Chief Appeals Division, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ.

Author: Hoffman

[ 275 Pa. Super. Page 250]

Appellant contends, inter alia, that trial counsel was ineffective for failing to challenge the sufficiency of the evidence supporting his conviction. We remand to allow for appointment of new counsel.

On November 6, 1978, after a non-jury trial, appellant was found guilty of unauthorized use of an automobile.*fn1 Following denial of appellant's post-verdict motions, the lower court sentenced appellant to a prison term of 11 1/2 to 23 months. This appeal followed.

Appellant contends that trial counsel was ineffective for failing to challenge in post-verdict motions the sufficiency of the evidence supporting his conviction. We note, however, that both trial counsel and present counsel were members of the Defender Association of Philadelphia at the time of their representation of appellant.

When an appellant raising ineffectiveness of trial counsel is represented by appointed counsel from the same office which represented him at trial, the proper procedure is to remand to allow appointment of new counsel not associated with trial counsel. Commonwealth v. Fox, 476 Pa. 475,

[ 275 Pa. Super. Page 251383]

A.2d 199 (1978); Commonwealth v. Sherard, 477 Pa. 430, 384 A.2d 234 (1977); Commonwealth v. Wright, 473 Pa. [395], 398, 374 A.2d [1272], 1273 (1977). In such circumstances, it cannot "be assumed that appellate counsel will provide the zealous advocacy to which an appellant is entitled." Commonwealth v. Fox, supra, 476 Pa. at 479, 383 A.2d at 200.

Commonwealth v. Patrick, 477 Pa. 284, 286-87, 383 A.2d 935, 936 (1978). Accordingly, we remand to the trial court for appointment of new counsel not a member of the Defender Association of Philadelphia to represent appellant on the issue of ineffectiveness of trial counsel and any other issue properly preserved for appellate review.*fn2

Remanded for proceedings consistent with this opinion.


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