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filed: July 25, 1980.


No. 535 April Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Div. of Armstrong County at No. 1978-0053 Criminal.


Thomas A. Livingston, Pittsburgh, for appellant.

Frederick L. John, II, Assistant District Attorney, Kittanning, for Commonwealth, appellee.

Spaeth, Hoffman and Van der Voort, JJ. Hoffman, J., concurs in the result.

Author: Spaeth

[ 280 Pa. Super. Page 103]

This is an appeal from judgment of sentence for criminal attempt*fn1 and aggravated assault.*fn2 Appellant argues that the Commonwealth's evidence was insufficient because it failed to prove that the criminal acts occurred in Armstrong County; that when his trial counsel failed in his closing argument to anticipate certain points made by the Commonwealth

[ 280 Pa. Super. Page 104]

    in its closing argument, the lower court abused its discretion in refusing to give counsel an opportunity to rebut the Commonwealth's argument; and finally, that the lower court's instructions to the jury on the defense of justification were misleading.

Appellant is represented on this appeal by the same counsel who represented him at trial. At least some,*fn3 if not all, of appellant's arguments amount to the claim that at trial he was denied his right to the effective assistance of counsel. We shall therefore remand for the appointment of new counsel, unassociated with his present counsel,*fn4 to represent appellant. Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978); Commonwealth v. Patrick, 477 Pa. 284, 383

[ 280 Pa. Super. Page 105]

A.2d 935 (1978); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Boyer, 277 Pa. Super. 82, 419 A.2d 671 (1980); Commonwealth v. Jellots, 277 Pa. Super. 358, 419 A.2d 1184 (1980).

In Commonwealth v. Gardner, supra 480 Pa. at 10, 389 A.2d at 59, the Supreme Court stated:

When an appellant raising ineffectiveness of appointed trial counsel is represented on appeal by the same counsel, he is entitled to a remand for appointment of new counsel not associated with trial counsel unless ineffective assistance of counsel is clear on the face of the record. Commonwealth v. Patrick [ supra ]; Commonwealth v. Fox, [ supra ]; Commonwealth v. Sherard, 477 Pa. 429, 384 A.2d 234 (1977); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977). "In such circumstances, it cannot 'be assumed that appellate counsel will provide the zealous advocacy to which an appellant is entitled.'" Commonwealth v. Patrick, 477 Pa. at 287, 383 A.2d at 936, quoting Commonwealth v. Fox, 476 Pa. at 479, 383 A.2d at 200.

The Court also stated that "if appointed counsel on appeal is deemed unlikely to provide effective representation in advocating his own ineffectiveness at trial, retained counsel in the same circumstances should be regarded as equally unsatisfactory." 480 Pa. at 10, 389 A.2d at 59. Here, we cannot conclude on the face of the record that counsel was ineffective.*fn5

The judgments of sentence are vacated and the case is remanded for proceedings consistent with this opinion. If

[ 280 Pa. Super. Page 106]

    after such proceedings the lower court determines that appellant's trial counsel was ineffective, it shall order a new trial, but if it determines that counsel was not ineffective, it shall reinstate the judgments of sentence. If the lower court orders a new trial, the Commonwealth may appeal, and if it reinstates the judgments of sentence, appellant may appeal, in accordance with law.

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