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COMMONWEALTH PENNSYLVANIA v. DANIEL DELKER (01/20/82)

submitted: January 20, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL DELKER, APPELLANT



No. 1492 Philadelphia, 1981, Appeal from the Order of May 12, 1981, Court of Common Pleas, Criminal Division, Luzerne County, at No. 1209-A of 1972.

COUNSEL

Lewis J. Bott, Assistant Public Defender, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Johnson, Watkins and Lipez, JJ. Watkins, J., files a dissenting opinion.

Author: Johnson

[ 306 Pa. Super. Page 362]

This is an appeal from the denial of Appellant's petition filed pursuant to the Post Conviction Hearing Act*fn1 (PCHA). Appellant, while represented by the Public Defender's Office, was found guilty by a jury of assault with intent to kill, assault by a prisoner, aggravated assault and battery and assault and battery. Following the denial of post-verdict motions, Appellant was sentenced, which judgment of sentence was affirmed per curiam by the Superior Court. Commonwealth v. Delker, 233 Pa. Super. 704, 338 A.2d 176 (1975). Appellant thereafter filed a PCHA petition alleging, inter

[ 306 Pa. Super. Page 363]

    alia, ineffective assistance of counsel. The trial court appointed the same Public Defender's Office to represent Appellant on his PCHA petition as had represented Appellant at trial. The Public Defender's Office then filed a motion to withdraw as counsel and for appointment of new counsel because of the conflict of interest arising from Appellant's allegation of ineffective assistance of trial counsel. The trial court denied the motion for withdrawal as counsel and on May 12, 1981, denied the PCHA petition, after a hearing. This appeal followed.

We find the instant situation to be nearly identical to that in Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977), where the court stated:

A PCHA petitioner alleging ineffective assistance of counsel may not be represented by an attorney from the same office as the allegedly ineffective attorney, regardless of the fact that one started working there after the other left. The later attorney, by reason of his association with the same office, still has an appearance of a conflict of interest threatening his duty of zealous advocacy.

Id., 473 Pa. at 398, 374 A.2d at 1273. See also, Commonwealth v. Willis, 492 Pa. 310, 424 A.2d 876 (1981).

We therefore remand this case for appointment of counsel other than a public defender. Do ...


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