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COMMONWEALTH PENNSYLVANIA v. KENNETH QUARLES (02/20/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: February 20, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH QUARLES, APPELLANT

No. 2413 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, Nos. 1953-1955, April Term, 1979.

COUNSEL

Paul Messing, Assistant Public Defender, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Hoffman and Cirillo, JJ.*fn*

Author: Per Curiam

[ 284 Pa. Super. Page 475]

On September 7, 1979, a court sitting without a jury convicted appellant of aggravated assault, recklessly endangering another person, and two counts of possession of an instrument of crime. After denying post-verdict motions, the court imposed sentence, and appellant took this appeal. Appellant contends, inter alia, that counsel below was ineffective for failing to challenge in post-verdict motions alleged deficiencies in the colloquy in which he waived his right to a jury trial. We note, however, that both counsel below and present counsel were members of the Defender Association of Philadelphia at the time of their representation of appellant.

When an appellant raising ineffectiveness of trial counsel is represented by appointed counsel from the same office which represented him at trial, the proper procedure is to remand to allow appointment of new counsel not associated with trial counsel. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Sherard, 477 Pa. 430, 384 A.2d 234 (1977); Commonwealth v. Wright, 473 Pa. 398, 374 A.2d 1273 (1977). In such circumstances, it cannot "be assumed that appellate counsel will provide the zealous advocacy to which an appellant is entitled." Commonwealth v. Fox, supra, 476 Pa. at 479, 383 A.2d at 200.

Commonwealth v. Patrick, 477 Pa. 284, 286-87, 383 A.2d 935, 936 (1978). See also Commonwealth v. Harrison, 275 Pa. Super. 249, 418 A.2d 706 (1980). Accordingly, we remand to the lower court for appointment of new counsel not a member of the Defender Association of Philadelphia to represent appellant on the issue of ineffectiveness of counsel below and any other issue properly preserved for appellate review.*fn**


*fn* Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.


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