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COMMONWEALTH PENNSYLVANIA v. HERBERT JACKSON (04/16/80)

SUPERIOR COURT OF PENNSYLVANIA


submitted: April 16, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
HERBERT JACKSON, APPELLANT

No. 505 April Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC7806472.

COUNSEL

John H. Corbett, Jr., Assistant Public Defender, Pittsburgh, for appellee.

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

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 280 Pa. Super. Page 524]

This is an appeal from a judgment of sentence imposed after a jury convicted appellant of attempt*fn1 and possession of an instrument of crime,*fn2 and the lower court convicted him of the summary offense of criminal mischief.*fn3 Appellant argues 1) that he was improperly convicted of both attempt and possession of an instrument of crime; 2) that the lower court should have instructed the jury on criminal mischief because under the facts of this case it was a lesser offense included in the greater offense of attempt; and 3) that if we conclude that this second argument has been waived because not properly raised before the lower court, we should remand the case to the lower court to determine whether trial counsel was ineffective.

The Commonwealth properly concedes the correctness of appellant's first argument. Appellant was convicted of attempted burglary and possession of an instrument of crime because he tried to break into a restaurant by banging

[ 280 Pa. Super. Page 525]

    on the door with a hammer.*fn4 Section 906 of the Crimes Code*fn5 states that a defendant should not be convicted of more than one inchoate crime for conduct designed to end in the same ultimate crime. Accordingly, appellant should not have been sentenced for both attempt and possession of an instrument of crime, but only for one or the other. We shall therefore vacate the judgments of sentence for attempt and possession of an instrument of crime and remand the case to the lower court so that it may resentence appellant for either attempt or possession of an instrument of crime. Commonwealth v. Jackson, 261 Pa. Super. 355, 396 A.2d 436 (1978); Commonwealth v. Crocker, 256 Pa. Super. 63, 389 A.2d 601 (1978).

It is clear that appellant's trial counsel waived appellant's second argument.*fn6 We must therefore remand

[ 280 Pa. Super. Page 526]

    this case to the lower court for the appointment of new counsel and a hearing on appellant's ineffectiveness claim. Appellant's present counsel is from the same office as his trial counsel, the Pittsburgh Public Defender's office. In Commonwealth v. Boyer, 277 Pa. Super. 82, 419 A.2d 671 (1980), we stated:

When an appellant raising the ineffectiveness of trial counsel is represented by appointed counsel from the same office that represented him at trial, the proper procedure is to remand for the appointment of new counsel not associated with trial counsel. Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977); Commonwealth v. Crowther, 241 Pa. Super. 446, 361 A.2d 861 (1976) (SPAETH, J. concurring opinion). Appellant may, however, choose to retain his counsel provided he is made aware of the dangers and possible disadvantages of proceeding with counsel whom he asserts is ineffective. Therefore, on remand, the court should inform appellant of the facts necessary to ensure that his decision is an intelligent one, voluntarily made. Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978); Commonwealth v. Roach, 268 Pa. Super. 340, 408 A.2d 495 (1979).

Judgments of sentence vacated and case remanded for proceedings consistent with this opinion. Upon entry of new judgment or order granting a new trial, as the case may be, either party may file a new appeal, as provided by law.


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