No. 2414 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Delaware County, Criminal Division, No. 4896 September Term, 1976.
Robert F. Pappano, Assistant Public Defender, Media, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Price, Spaeth, and Lipez, JJ. Spaeth, J., concurs in the result.
[ 278 Pa. Super. Page 310]
On October 7, 1977, appellant was convicted by a jury of robbery,*fn1 theft by unlawful taking,*fn2 simple assault,*fn3 aggravated assault,*fn4 conspiracy,*fn5 and attempted murder.*fn6 Post-trial motions in arrest of judgment and for a new trial were denied, and appellant was sentenced to concurrent three to six year terms of imprisonment on the robbery and aggravated assault charges. Sentence was suspended on the other convictions. Appellant takes this appeal from the judgment of sentence alleging that (1) the trial court improperly allowed a Commonwealth witness to make an in-court identification of him without first determining whether that identification was tainted by a suppressed photographic identification, (2) the trial court erred in permitting a Commonwealth witness, on cross-examination, to testify regarding the suppressed photographic identification, and (3) he was denied effective assistance of counsel at trial and in the preparation and argument of post-trial motions. We remand for appointment of new counsel and, therefore, decline to review the merits of these issues.
Appellant is represented on this appeal by members of the Delaware County Public Defender's Office, the same office that represented him at every stage of the proceedings in
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this case.*fn7 It is well-settled in this Commonwealth that when an appellant raising ineffectiveness of trial counsel on appeal is represented by appointed counsel from the same office that represented him at trial, the proper course is to remand to the court of common pleas to allow appointment of new counsel not associated with trial counsel. Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977). This rule is based upon the premise that the mere association of appellate counsel with the same office that represented appellant at trial has the appearance of a conflict of interest that threatens counsel's duty of zealous advocacy. In such circumstances, "[t]he nature of the criminal process necessitates that even the appearance of partiality be scrupulously avoided." Commonwealth v. Crowther, 241 Pa. Super. 446, 361 A.2d 861 (1976). Accordingly, we remand for the appointment of new counsel not associated with the Delaware County Public Defender's Office to represent appellant on his appeal on the issue of ineffectiveness of trial counsel and any other issues not waived or finally litigated.
Case remanded for appointment of new counsel, after which the appeal will be given a new briefing ...