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COMMONWEALTH PENNSYLVANIA v. KENNETH MOYER (04/03/80)

filed: April 3, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH MOYER, APPELLANT



No. 288 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Erie County, Criminal Division, No. 1779 of 1977.

COUNSEL

Zanita Zacks-Gabriel, Erie, for appellant.

Michael M. Palmisano, Assistant District Attorney, Erie, for Commonwealth, appellee.

Spaeth, Hoffman, and Van der Voort, JJ.

Author: Hoffman

[ 277 Pa. Super. Page 79]

Appellant's counsel asserts that no issues of arguable merit exist for appeal and seeks withdrawal from further representation of appellant. We remand for appointment of new counsel.

On November 17, 1977, a jury convicted appellant of robbery and recklessly endangering another person. In

[ 277 Pa. Super. Page 80]

    post-verdict motions, appellant raised only sufficiency of the evidence to sustain the verdict. After denying the motions, the trial court sentenced appellant to consecutive terms of imprisonment of 3 1/2 to 7 years for robbery and 1 to 2 years for reckless endangerment. Appellant did not file a petition for reconsideration of sentence. In all these proceedings, counsel from the office of the Public Defender of Erie County represented appellant.

In this appeal, counsel from the Erie County Public Defender again represents appellant. Appellate counsel, seeking to withdraw from representation, refers this Court to portions of the record, raises issues that might arguably support an appeal, and concludes that all such issues are frivolous. See Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974). The issues discussed are sufficiency of the evidence, various trial rulings, assistance of trial counsel, and sentencing. Because appellant challenged only sufficiency of the evidence in his post-verdict motions, and he did not file a petition for reconsideration of sentence, counsel in this appeal may raise only sufficiency of the evidence and effective assistance of trial counsel. See Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975) (only issues raised in post-verdict motions preserved for appellate review); Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978) (although effectiveness of trial counsel not raised in post-verdict motions, issue preserved for appellate review where defendant was represented on post-verdict motions by trial counsel); Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978) (waiver of sentencing issues). We do not consider whether appellate counsel may properly withdraw from representation or whether these two issues are frivolous. Instead, we remand for appointment of new counsel.

[ 277 Pa. Super. Page 81]

Appellant is represented by counsel from the same office which represented him at trial. Normally, when an appellant so represented on appeal alleges ineffective assistance of trial counsel, the proper course, unless ineffective assistance clearly appears, is to remand for appointment of new counsel not associated with trial counsel. See e. g., Page 81} Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978). "In such circumstances, it cannot 'be assumed that appellate counsel will provide the zealous advocacy to which an appellant is entitled.'" Id., 477 Pa. at 287, 383 A.2d at 936 (citation omitted).

Similarly, we cannot assume that appellate counsel, reviewing the effectiveness of trial counsel from the same office, has provided the "zealous advocacy to which an appellant is entitled." Were we to conclude that the issues raised in this appeal, including effective assistance of trial counsel, were frivolous, we would do so upon representation deemed inadequate. The need for vigorous advocacy is especially ...


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