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COMMONWEALTH PENNSYLVANIA v. DONALD KIBLER (01/05/82)

filed: January 5, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
DONALD KIBLER, APPELLANT



No. 253 Pittsburgh, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at Nos. 7901141A, 7901142, 7901143, 7901144 and 7901145.

COUNSEL

Richard S. Levine, Pittsburgh, for appellant.

Dara A. DeCourey, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Cavanaugh, Johnson and Shertz, JJ. Shertz, J. filed a dissenting opinion. Decision was rendered prior to Shertz, J., leaving the bench of the Superior Court of Pennsylvania.

Author: Cavanaugh

[ 294 Pa. Super. Page 32]

In this case, the appellant, Donald Kibler, was tried before the Honorable Loran Lewis and a jury and found guilty of five counts of corruption of minors and one count of sexual abuse of children. At trial, the appellant was represented by private counsel, Charles Schwartz, Esquire.

On appeal, appellant was represented by the public defender's office which filed a brief on his behalf and a member of that office argued before this Court. Appellant also filed a pro se brief in which he raises the issues of denial of effective assistance of counsel, excessive sentence and disparity of sentence between the appellant and his co-defendants, and error of the court below in failing to grant the appellant a continuance so that he could obtain new counsel. In his pro se brief appellant states: "The appellant contends that he was denied effective assistance of counsel when the trial court refused his request to have retained counsel withdraw so that he may retain new counsel."

Appellant's counsel on appeal raises entirely different issues. Appellate counsel claimed that the court below erred (1) in failing to suppress evidence seized based on a search warrant allegedly issued without probable cause; (2) in denying a motion for mistrial based on an incident which occurred during trial and witnessed by the jury and (3) in denying a mistrial because of the prosecutor's closing remarks to the jury.

Since appellant has filed a pro se brief raising the issue of effective assistance of trial counsel, if the appellant had been represented at trial by a public defender as well as on appeal, we would remand for the appointment of new counsel.

[ 294 Pa. Super. Page 33]

    was recently reiterated in Commonwealth v. Webster, 490 Pa. 322, 324-325, 416 A.2d 491, 492 (1981).

Issues not raised in post-verdict motions will not be considered on appeal. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). An exception exists, however, when ineffective assistance of prior counsel is raised. In such a case, ineffectiveness of prior counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents appellant. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

In the instant case, Appellant is represented on appeal by counsel different from trial counsel. Therefore, in order to preserve the issue of ineffective trial counsel, it was necessary for appellate counsel to raise it on direct appeal. Although appellate counsel ...


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