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COMMONWEALTH PENNSYLVANIA v. JIMMY LEE TOWNS (09/18/81)

filed: September 18, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
JIMMY LEE TOWNS, APPELLANT



No. 902 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. 7903350A.

COUNSEL

Donald R. Calaiaro, Pittsburgh, for appellant.

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

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

Author: Per Curiam

[ 290 Pa. Super. Page 437]

On August 29, 1979, after a non-jury trial, appellant was convicted of simple assault and unlawful restraint. Following the denial of post-verdict motions and imposition of sentence, appellant took this appeal in which he challenges the effectiveness of his trial counsel. For the reasons which follow, we vacate the judgment of sentence and remand for proceedings consistent with this opinion.

Appellant contends that his trial counsel was ineffective for failing to call at trial a particular witness who would have corroborated his version of the incident which resulted in the above-mentioned charges. We note, however, that appellant's trial counsel and his present counsel are both from the office of the Public Defender of Allegheny County.

When an appellant raising ineffectiveness of trial counsel is represented by appointed counsel from the same office

[ 290 Pa. Super. Page 438]

    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. [429], 384 A.2d 234 (1977); Commonwealth v. Wright, 473 Pa. 398, 374 A.2d [1272] 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. Quarles, 11 Pa. Super. 473, 426 A.2d 145 (1981); Commonwealth v. Harrison, 275 Pa. Super. 249, 418 A.2d 706 (1980). While an appellate court "will entertain a claim of ineffective assistance of counsel on appeal by the same attorney who served as trial counsel if reversible error is apparent on the record before [it], [it] will not reject such a claim without a remand for appointment of new counsel." Commonwealth v. Fox, 476 Pa. 475, 479, 383 A.2d 199, 201 (1978). Here, as in Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975), the present record does not show that trial counsel had been ineffective for failing to call the witness. Consequently, we must remand this case for appointment of new counsel and an evidentiary hearing on the issue of trial counsel's alleged ineffectiveness. Cf. Commonwealth v. Stiefel, 286 Pa. Super. 259, 428 A.2d 981 (1981) (where record clearly showed counsel's ineffectiveness for failing to call a particular witness, appropriate relief was granted without remand for appointment of new counsel). If, following the hearing, the court determines that appellant was denied effective assistance of counsel, it shall enter an order granting appropriate relief. If, however, the court determines that counsel was not ineffective, then it shall reinstate the judgment of sentence. Either party aggrieved by the court's ultimate decision may take a new appeal to this Court, as allowed by law. On that appeal, the parties may present any issue properly preserved for appellate

[ 290 Pa. Super. Page 439]

    review. Commonwealth v. Twiggs, supra; Commonwealth v. Quarles, supra; ...


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