Nos. 1420, 1421 and 1422 October Term, 1979, Appeal from Judgments of Sentence entered June 19, 1979 in the Court of Common Pleas of Chester County at Criminal Nos. 011778 066378 and 066378(a).
Janet W. Mason, Assistant Public Defender, West Chester, for appellant.
Lee Ruslander, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Price, Cavanaugh and Watkins, JJ.
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One of the issues raised on appeal in this case is that appellant's motion in arrest of judgment should be granted because of ineffective assistance of counsel. Trial counsel in
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this case was a member of the Public defender's Office of Chester County. On appeal another member of the same public defender's office represented appellant. The alleged ineffectiveness consisted of the failure of trial counsel to demur or move for a directed verdict on the charge of homicide by vehicle.*fn1 Appellant alleges that the section of The Vehicle Code in question was subject to attack as a violation of the appellant's constitutional right of due process. This contention is without merit as the constitutionality of Section 3732 of The Vehicle Code has recently been upheld by our Supreme Court in Commonwealth v. Burt, 490 Pa. 173, 415 A.2d 89 (1980). We may not properly assume, however, that there is no other basis for the charge of alleged ineffectiveness of counsel.
We must decide on this appeal whether a member of the same public defender's office as trial counsel may raise the issue of ineffective assistance of counsel where it is not obvious that he was ineffective. As stated in Commonwealth v. Vigue, 279 Pa. Super. 46, 420 A.2d 736 (1980):
The issue of ineffective assistance of counsel is by its nature a difficult one to pursue. In this case appellate counsel has raised the question of the effectiveness of counsel in the court below, who is also an associate in the same office . . . . While counsel on appeal has indicated alleged inadequacies on the part of his colleague from the public defender's office, we feel this matter would be more vigorously pursued by counsel not from the same office as trial counsel.
See also: Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978); Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978).
On appeal ". . . one member of the public defender's office [may] raise the ineffectiveness of another member if reversible error is apparent on the record." Commonwealth v. McNeal, 261 Pa. Super. 332, 336, 396 A.2d 424, 426 ...