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COMMONWEALTH PENNSYLVANIA v. JESSIE HOAK (03/07/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 7, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JESSIE HOAK, APPELLANT

No. 329 April Term 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, Nos. 113, 114, 115, 116, 117 April Term, 1969, and 156 April Term 1969.

COUNSEL

John H. Corbett, Jr., Pittsburgh, for appellant.

Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Cercone, President Judge, and Montgomery and Lipez, JJ.

Author: Lipez

[ 276 Pa. Super. Page 50]

In 1969, appellant, represented by privately retained counsel, was convicted, after a jury trial, of conspiracy, robbery, receiving stolen property and armed robbery. On direct appeal, taken on appellant's behalf by a public defender, this court affirmed per curiam without opinion. The Supreme Court of Pennsylvania denied allocatur. In 1977, appellant filed pro se a Post-Conviction Hearing Act (PCHA) petition, and a second public defender was appointed to represent him at the subsequent PCHA Hearing. Hearing counsel never moved to amend the petition. The hearing court refused to allow appellant to present any evidence and denied the petition.

On this appeal from that denial, appellant, represented by a third public defender, raises for the first time the claim that prior counsel were ineffective for failing to preserve and raise the argument that the jury observed appellant in handcuffs and were thereby unduly prejudiced against him.*fn1

[ 276 Pa. Super. Page 51]

Inasmuch as appellant, in thus alleging the ineffectiveness of prior counsel, (which ineffectiveness is not apparent on the record) two of whom were from the same public defender's office, and is represented on this appeal by counsel from that same office, we remand for appointment of new counsel not associated with the public defender. Commonwealth v. Sherard, 477 Pa. 429, 384 A.2d 234 (1977); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977). In order that the above issue might properly be raised below, we direct the lower court 1) to allow such new counsel to submit an amended PCHA petition; and 2) to conduct an evidentiary hearing thereon.

Order vacated and case remanded for proceedings consistent with this opinion.


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