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filed: May 15, 1981.


No. 1993 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Montgomery County, Criminal Division, No. 4209C-77.


Lawrence A. Ruth, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, submitted a brief on behalf of Commonwealth, appellee.

Price, Cavanaugh and Watkins, JJ.

Author: Price

[ 284 Pa. Super. Page 525]

Following a jury trial commenced on March 17, 1978, appellant was convicted of possessing an instrument of crime,*fn1 burglary,*fn2 and conspiracy.*fn3 Post-verdict motions for a new trial and in arrest of judgment were denied, and appellant was sentenced to a prison term of from four to ten years. He takes this appeal from the judgment of sentence alleging, inter alia, ineffective assistance of trial counsel. For the reasons stated herein, we vacate the judgment of sentence and remand the case to the court of common pleas.

Appellant has gone to great lengths to have his ineffective assistance claims reviewed. At trial, appellant was represented

[ 284 Pa. Super. Page 526]

    by the Montgomery County Public Defender. Following imposition of sentence, a notice of appeal to this court was filed on July 6, 1978. The brief subsequently filed on appellant's behalf by the Public Defender's Office raised but one issue, viz., the sufficiency of the evidence. In a letter to the Public Defender's Office dated October 31, 1978, appellant objected to the omission of "numerous issues" from the appellate brief and directed that the appeal be withdrawn so that he might "proceed properly." Accordingly, the Public Defender's Office requested that the appeal be discontinued, which request was granted on November 17, 1978. Thereafter, on December 6, 1978, appellant filed a petition under the Post Conviction Hearing Act (PCHA) alleging, inter alia, ineffective assistance of trial counsel. On January 9, 1979, the Commonwealth moved to dismiss the PCHA petition. Following a hearing on March 27, 1979, at which appellant was represented by court-appointed counsel not associated with the Montgomery County Public Defender's office, the court below dismissed the petition but granted appellant leave to reinstate his direct appeal nunc pro tunc.*fn4 On May 16, 1979, we granted appellant's "Application to Reinstate Direct Appeal Nunc Pro Tunc."

On May 22, 1979, appellant petitioned the court below to appoint new appellate counsel because the attorney then representing him refused to comply with appellant's request to raise trial counsel's ineffectiveness on direct appeal. Appellant's petition for new counsel was motivated by his fear that, under Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975), his ineffective assistance claims would be deemed waived unless presented on direct appeal. Accordingly, present appellate counsel was appointed by the trial court on May 25, 1979. Appellant is thus represented by new counsel

[ 284 Pa. Super. Page 527]

    and the issue of trial counsel's ineffectiveness is, therefore, properly before us. Commonwealth v. Dancer, supra.

Appellant contends he was denied effective assistance of counsel when his trial counsel failed to object to allegedly prejudicial remarks made by the prosecutor during his closing argument. Unfortunately, the Commonwealth's closing argument was not recorded.*fn5 We are thus unable to determine from the record: (1) the substance of the remarks complained of; (2) whether these remarks were prejudicial; and (3) if they were prejudicial, whether counsel's failure to object to them had any reasonable basis designed to effectuate appellant's interests.

Where the record on appeal clearly shows that there could have been no reasonable basis for a damaging decision or omission by trial counsel, then of course the judgment must be vacated and appropriate relief, such as allowing the filing of post trial motions or the ordering of a new trial, granted. Where, on the other hand, it is impossible

[ 284 Pa. Super. Page 528]

    to tell from the record whether or not the action of trial counsel could have had a rational basis, the appellate court will vacate the judgment, at least for the time being, and remand for an evidentiary hearing at which trial counsel may state his reasons for having chosen the course of action taken.

Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976). See also Commonwealth v. Fountain, 485 Pa. 383, 402 A.2d 1014 (1979); Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth v. Hawkins, 278 Pa. Super. 121, 420 A.2d 459 (1980).

*fn* Editor's Note: The opinion of the Superior Court of Pennsylvania in Kingsley and Keith (Canada) Limited v. Mercer International Corporation, published in the advance sheets at this citation (426 A.2d 618), was withdrawn from bound volume because reconsideration was granted.

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