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filed: April 16, 1981.


No. 105 April Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Div., at No. CC7802273.


Donald R. Calaiaro, Pittsburgh, for appellant.

Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Spaeth, Hoffman and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.

Author: Spaeth

[ 286 Pa. Super. Page 262]

This appeal is from judgments of sentence for rape, indecent assault, burglary, simple assault, recklessly endangering another person, and terroristic threats. Appellant argues that he is entitled to a new trial because his trial counsel was ineffective. This argument is made by the same office -- the Allegheny County Public Defender -- as represented appellant at trial. Nothing in the record indicates that appellant made a knowing choice to continue to be represented by the office he claims was ineffective. Cf. Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978); Commonwealth v. Roach, 268 Pa. Super. 340, 408 A.2d 495 (1979). At minimum, therefore, appellant is entitled to a remand for appointment of appellate counsel not associated with the defender's office. Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977); Commonwealth v. Boyer, 277 Pa. Super. 82, 419 A.2d 671 (1980).*fn1 However, if the ineffectiveness of counsel is apparent on the face of the record, there is no need to remand for appointment of new counsel. Commonwealth v. Drake, 489 Pa. 541, 414 A.2d 1023 (1980); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). The appropriate remedy is to grant a new trial. We have concluded that this is a case where the ineffectiveness of trial counsel is apparent on the face of the record.*fn2 We shall therefore vacate the sentence and remand for new trial.

[ 286 Pa. Super. Page 263]

One of appellant's claims is that his trial counsel was ineffective in filing overly general, "boilerplate," post-trial motions. For example, paragraph number 5 of the motion for new trial read: "The learned Trial Court erred in denying Defendant's motions made during the trial." The lower court properly refused to consider such a general assignment of error. Pa.R.Cr.P. 1123(a); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). One assignment of error that the lower court did find specific enough to require consideration was paragraph number 6 of the motion for new trial, which read: The learned Trial Court erred in denying Defendant's motion for a postponement." We agree with the lower court that it did not err in denying the motion for postponement. However, this conclusion compels us to the further conclusion that appellant's trial counsel was ineffective.

At trial, the victim testified as follows. Appellant was a friend of her younger brothers' and had stayed with them in her house while she had been out of town a few weeks before the night in question. On that night, at about 11 p. m., she was asleep in her living room when appellant appeared in the room. He no longer had a key to the house and she assumed he had entered through an unlocked upstairs window, which was accessible from the ground. Appellant told her he was looking for something he had left in

[ 286 Pa. Super. Page 264]

    the house. Although he appeared to be drunk or high he left the house without further incident. Much later in the night, when she was asleep in her bed, she again became aware of appellant's being in the house. Over the next several hours he threatened her with a knife, tied her up, and raped her twice.

Appellant gave conflicting testimony, as follows. He had been at a wedding reception until 3 a. m. On his way home from the reception he realized that a chrome strip he needed for a car he was working on was at the victim's house. He went to the house, knocked on the door, and was admitted. After looking unsuccessfully for the chrome strip he sat on the living room couch with the victim and she started making advances to him. He responded to these advances and they engaged in consensual intercourse, which, according to appellant, they had done on two prior occasions.

At the beginning of the trial, appellant's counsel had requested a two-day postponement in order to locate two witnesses who, it was said, could corroborate appellant's account of the early part of the evening. This would provide a partial alibi and also impeach the victim by contradicting her version of appellant's whereabouts on the night in question. Counsel explained that although appellant had been represented from the beginning by the public defender's office, he personally had been assigned the case only the previous Friday, had had another trial in the interim, and had learned only that morning of the two witnesses. The Commonwealth objected to any further delay, and also argued that any alibi witnesses would be subject to exclusion because of failure to comply with Pa.R.Cr.P. 305 C(1), which required the details of an alibi defense and the names of prospective alibi witnesses to be disclosed at the time the omnibus pretrial motion was due to be filed. After a colloquy, during which the lower ...

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