decided: June 19, 1981.
COMMONWEALTH OF PENNSYLVANIA
GEORGE COOKE, JR., APPELLANT
No. 482 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Pennsylvania, Criminal Division, No. 2181 of 1979.
Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
Brosky, Johnson and Popovich, JJ.
[ 288 Pa. Super. Page 206]
The present appeal stems from the lower court's Order denying, without a hearing, appellant's "Motion To Withdraw Guilty Plea And To Have Outside Counsel Appointed."*fn1 For the reasons set forth herein, we vacate the
[ 288 Pa. Super. Page 207]
Judgment of Sentence and the Order of the Court of Common Pleas of Lancaster County and remand for proceedings consistent with this Opinion.
On February 13, 1980, appellant entered a plea of guilty to a charge of resisting arrest*fn2 and was sentenced, on the same day, to a period of probation for two years, fined $100.00 plus costs of prosecution and ordered to make restitution. The sentence imposed was pursuant to a plea agreement.*fn3 On February 22, 1980, appellant filed a timely motion to withdraw his guilty plea*fn4 and to have private counsel appointed
[ 288 Pa. Super. Page 208]
contending that his attorney was "ineffective in assisting him in the disposition of his case." (Appellant's "Motion To Withdraw Guilty Plea And To Have Outside Counsel Appointed," Point 3) The attorney who prepared and presented the Motion was the same public defender who represented appellant at the guilty plea hearing.
The lower court denied appellant's Motion because it felt that the "plea was voluntarily made," and that "there [wa]s only the bare allegation of ineffective counsel and not support averments . . . ." (Lower Court Opinion, at 1 & 2)
On appeal the appellant, represented by second counsel from the public defender's office, "alleges that his trial attorney forced him into pleading guilty." (Emphasis added) (Appellant's Brief, at 2) This is the only issue raised. The Commonwealth urges us to dismiss this claim on the basis that "[a]ppellant did not make this allegation of coercion at all in the court below." (Commonwealth's Brief, at 3) We do not agree.
To begin with, as has often been recognized and specifically noted, it is unrealistic to expect trial counsel to argue his own ineffectiveness, whether it be in post-trial motions or on appeal.*fn5 See Commonwealth v. Dancer, 460 Pa. 95, 100, 331 A.2d 435, 438 (1975); Commonwealth v. Wilks, 250 Pa. Super. 182, 191, 378 A.2d 887, 891 (1977). Consequently, this appeal being the first occasion on which appellant is represented by counsel other than the one whose stewardship is being questioned, we cannot fault him for failing to raise the issue sooner. See Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Lee, 254 Pa. Super. 495, 386 A.2d 59 (1978).
[ 288 Pa. Super. Page 209]
Furthermore, in Commonwealth v. Zakrzewski, 460 Pa. 528, 333 A.2d 898 (1975) the accused filed a pro se brief or petition on appeal claiming that his plea was prompted by assurances from his lawyer that a lenient sentence would be imposed by the court in exchange for his pleading guilty. The fact that Zakrzewski's claim was not raised in the court below did not render it waived. See, e. g., Commonwealth v. Dilbeck, 455 Pa. 113, 314 A.2d 505 (1974) (on appeal, appellant's pro se brief raised issues concerning trial counsel's effectiveness; the court remanded for appointment of new counsel). To the contrary, our Supreme Court observed that: "Appellant's allegation is a serious one, therefore, and if there were any possibility that it were true, we would remand for an evidentiary hearing so that the facts might be found by the trial court." (Footnote omitted) Id., 460 Pa. at 533-34, 333 A.2d at 901. However, a remand was not necessary because the Court found that the lower court conducted an extensive colloquy, in which the appellant and his counsel denied the existence of any plea agreement. Moreover, the Court went on to hold:
" In the absence of any suggestion by appellant that he was not truthful because he was threatened or 'coached', or because of some other reason that would necessarily be outside the record before us the exhaustive colloquy conducted below provides us with a sufficient factual basis for assessing appellant's claim and for concluding, as we do, that it is without merit." (Emphasis added) Ibid.; accord, Commonwealth v. Harris, 267 Pa. Super. 229, 406 A.2d 778 (1979).
[ 288 Pa. Super. Page 210]
Instantly, unlike in Zakrzewski, we are confronted with a situation in which the appellant alleges that he was "forced" into pleading guilty, and there was no "exhaustive colloquy conducted below [which] provides us with a sufficient factual basis for assessing appellant's claim and for concluding . . . that it is without merit."*fn6 Commonwealth v. Zakrzewski, Page 210} supra, 460 Pa. at 534, 333 A.2d at 901. Therefore, since resolution of the claim is dehors the record, a remand for an evidentiary hearing is necessary so that facts might be found by the trial court. Id.; Commonwealth v. Spitler, 217 Pa. Super. 170, 269 A.2d 380 (1970); see also Commonwealth v. Taggart, 258 Pa. Super. 210, 392 A.2d 758 (1978); cf. Commonwealth v. Johnson, 460 Pa. 303, 308, 333 A.2d 739, 741 (1975) (resolving an issue of credibility is inappropriate for an appellate court; better practice is to remand for an evidentiary hearing).
In addition, a remand is warranted in this case because appellant is represented on appeal by counsel from the same public defender's office which represented him at trial. Normally, when an appellant so represented on appeal alleges ineffective assistance of trial counsel, the proper course, unless ineffective assistance clearly appears, is to remand for appointment of new counsel not associated with trial counsel. See e. g., Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1974). Here, trial counsel's ineffectiveness ("forcing" the appellant to plead guilty) is not apparent from the record. Accordingly, upon remand the lower court is to permit appellant, if he desires,*fn7 to select new counsel,
[ 288 Pa. Super. Page 211]
not associated with guilty plea counsel, to represent him on the issue of guilty plea counsel's ineffectiveness and any other issue properly preserved for appellate review. If eligible, appellant may instead request the court to appoint new counsel for this purpose. Commonwealth v. Roach, 268 Pa. Super. 340, 408 A.2d 495 (1979).
Therefore, we vacate the Judgment of Sentence and the Order of the lower court dated February 22, 1980, and the case is remanded to that court for further proceedings consistent with this Opinion.