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COMMONWEALTH PENNSYLVANIA v. LINN SIMLER (07/25/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: July 25, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
LINN SIMLER, APPELLANT

No. 1288 April Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, No. CC7801034

COUNSEL

Paul D. Boas, Pittsburgh, for appellant.

Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

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

Author: Per Curiam

[ 280 Pa. Super. Page 155]

Appellant was convicted by a jury of simple assault, 18 Pa.C.S. ยง 2701. Sufficiency of the evidence was the only issue raised by trial counsel in post-verdict motions, which were denied. Represented by new counsel in this direct appeal, appellant raises both the sufficiency of the evidence and four new issues of trial counsel's alleged ineffectiveness.*fn1 We are unable to resolve the ineffectiveness issues on the record before us. We shall therefore vacate the judgment of sentence, and remand for an evidentiary hearing. If the court below determines that trial counsel was not ineffective, it shall reinstate the judgment of sentence. If it determines that counsel was ineffective, it shall order a new trial. The parties may appeal the lower court's order. Appellant may also raise the issue of sufficiency of the evidence at that time. Commonwealth v. Twiggs, 460 Pa. 105, 111 & n.6, 331 A.2d 440, 443 & n.6 (1975).

Judgment of sentence vacated, and case remanded for proceedings consistent with this opinion.


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