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COMMONWEALTH PENNSYLVANIA v. RICHARD FRANCIS SMITH (05/16/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 16, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD FRANCIS SMITH, A/K/A FRANCIS RICHARD SMITH, APPELLANT

No. 286 April Term 1979 Appeal from the Judgment of Sentence in the Court of Common Pleas of Erie County, Criminal Division, No. 2360 of 1977.

COUNSEL

Marilyn C. Fisher, Erie, for appellant.

John E. Moore, Assistant District Attorney, Erie, for Commonwealth, appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Per Curiam

[ 278 Pa. Super. Page 23]

Appellant was convicted of involuntary deviate sexual intercourse, corruption of minors, and indecent assault, and was sentenced to a term of imprisonment of not less than two and a half nor more than five years. On this appeal he alleges 1) that the lower court erred in finding the victim competent to testify; 2) that his trial counsel was ineffective for failing at the voir dire to interrogate and strike a juror who had been previously employed by the prosecuting police officer, and for failing to impeach a Commonwealth witness on the basis of his prior convictions; and 3) that he was improperly sentenced.

Appellant's first argument is waived because appellant's counsel did not object at trial to the victim's competency to testify.*fn1 See Commonwealth v. Hart, 272 Pa. Super. 189, 414 A.2d 1071 (1979). Appellant's second argument (concerning the effectiveness of his trial counsel) cannot be determined on the present record and we must therefore

[ 278 Pa. Super. Page 24]

    vacate the judgment of sentence and remand the case for an evidentiary hearing in accordance with Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).*fn2 If, following the evidentiary hearing, the lower court concludes that appellant received ineffective assistance of counsel at trial, it shall order a new trial. If the lower court determines that appellant received effective assistance of trial, however, the court shall not reimpose its original judgment of sentence, for the record substantiates appellant's argument that he was improperly sentenced. The lower court sentenced appellant at a hearing at which appellant was unrepresented by counsel, and although appellant responded affirmatively at the hearing to the court's inquiry whether he was waiving his right to counsel,*fn3 the court neglected to conduct a colloquy to determine that appellant's waiver was voluntary and intelligent. E. g., Commonwealth v. Fowler, 271 Pa. Super. 138, 412 A.2d 614 (1979); Commonwealth v. Hauser, 265 Pa. Super. 135, 401 A.2d 837 (1979).*fn4 In addition, the lower court has failed to state on the record its reasons for the sentence it imposed. E. g., Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, 474 Pa. 115,

[ 278 Pa. Super. Page 25377]

A.2d 140 (1977); Commonwealth v. Doyle, 275 Pa. Super. 373, 418 A.2d 1336 (1979); Commonwealth v. Wicks, 265 Pa. Super. 305, 401 A.2d 1223 (1979).*fn5 Consequently, if the lower court finds that a new trial is not required, it shall conduct a new sentencing hearing at which appellant is represented by counsel and proper procedures are followed.

Judgment of sentence is vacated and the case remanded for further proceedings in accordance with this opinion.*fn6


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