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COMMONWEALTH PENNSYLVANIA v. CHARLES MILTON EBERTS (11/26/80)

filed: November 26, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES MILTON EBERTS, JR., APPELLANT



No. 884 April Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Fayette County, Pennsylvania, Criminal Division, at Criminal Action Nos. 444 of 1975, 444-1/4 of 1975, and 444-3/4 of 1975 Dated May 26, 1976.

COUNSEL

Simon B. John, Assistant Public Defender, Uniontown, for appellant.

Conrad B. Capuzzi, District Attorney, Uniontown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, Former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 282 Pa. Super. Page 356]

OPINION

Appellant was charged with Robbery, Theft by Unlawful Taking or Disposition, Theft by Receiving Stolen Property, and Recklessly Endangering Another Person. On September 5, 1975, appellant was found guilty in a jury trial of all but Theft by Receiving Stolen Property. Post trial motions were filed and denied. A sentence of not less than five nor more than ten years was imposed on May 26, 1976 as to each charge, all to run concurrently. At trial, appellant was represented by Attorney Gary N. Altman, temporarily assigned to the Office of the Public Defender of Fayette County.

An appeal was filed on June 23, 1976, by appellate counsel, Simon D. John, also of the Fayette County's Public Defender Office.*fn1 In addition to several other issues, counsel raised the ineffectiveness of trial counsel as a basis for relief. Since appellant was represented both at trial and on appeal by the public defender's office, we filed a per curiam order dated December 8, 1978, instructing that new appellate

[ 282 Pa. Super. Page 357]

    counsel from outside that office be appointed to conduct an independent review of the record and to pursue any meritorious defense which might exist for the appellant. This course of action, appointing appellate counsel from outside the public defender's office, avoids even an appearance of a conflict of interest which might threaten appellate counsel's duty of zealous advocacy. See Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977), Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978), Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978).

Before we review appellant's contentions, we must first examine the facts. On June 16, 1975, Mrs. Irma Bibby was working as a clerk at Buck and Bob's Dairy Bar in Dawson, Pennsylvania. At approximately 9:20 A.M. on that date, appellant entered the store, stood by the bread rack for a few minutes, and then approached Mrs. Bibby. Appellant, who displayed a firearm partially hidden by one hand, stated, "This is a holdup. I want all the cash, no change." The victim stared at him for a minute, opened the cash register, and handed appellant approximately $280. Upon receipt of the money, appellant fled.

We will now address the substantive contentions raised by the appellant on this appeal. Initially, appellant challenges the legality of his convictions for both robbery and recklessly endangering another person, claiming they are subject to the doctrine of merger.*fn2 The relief which ...


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