No. 2243 October Term, 1977, Appeal from Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 805-807, October Term, 1976
Raymond E. Kumor, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge did not participate in the consideration or decision of this case.
[ 279 Pa. Super. Page 497]
Appellant contends that several instances of trial counsel ineffectiveness warrant the grant of a new trial. We do not, however, reach the merits of appellant's claims of ineffectiveness. Instead, for the reasons which follow, we remand to allow for the appointment of new counsel.
On April 5, 1977, after a jury trial, appellant was found guilty of aggravated assault, simple assault, possession of an instrument of crime generally, and criminal conspiracy. Following denial of post-verdict motions, the lower court sentenced appellant to prison terms of five to ten years on the assault and conspiracy convictions and one to two years
[ 279 Pa. Super. Page 498]
on the possession conviction, all sentences to run concurrently. This appeal followed:
Appellant contends that his trial counsel was ineffective for (1) failing to request a Bighum hearing;*fn1 (2) failing to represent appellant properly during a Bighum hearing initiated by the prosecutor; (3) failing to call appellant's mother as a defense witness; and (4) failing to request an instruction advising the jury to view the Commonwealth's identification evidence with caution.*fn2 We note, however, that appellant is represented on appeal by the same attorney who represented him at trial. In Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978), our Supreme Court stated that
[w]hen 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, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Fox, [476 Pa. 475, 383 A.2d 199 (1978)]; 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.
Id., 480 Pa. at 10, 389 A.2d at 59.
In the present case trial counsel's ineffectiveness is not clear on the face of the record. Accordingly, we remand the case to the trial court for appointment of new counsel not associated ...