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COMMONWEALTH PENNSYLVANIA v. GARY ALLEN PITTMAN (02/12/82)

filed: February 12, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY ALLEN PITTMAN, APPELLANT



No. 358 Pittsburgh, 1980, Appeal from the Judgment of Sentence dated March 21, 1980, in the Court of Common Pleas of Fayette County, Pennsylvania, Criminal Action No. 673 of 1979.

COUNSEL

Vincent J. Roskovensky, II, Uniontown, for appellant.

Gerald R. Solomon, District Attorney, Uniontown, submitted a brief on behalf of Commonwealth, appellee.

Spaeth, Shertz and Montgomery, JJ.

Author: Shertz

[ 295 Pa. Super. Page 236]

Following a jury trial, Appellant was found guilty of Robbery and Terroristic Threats. Appellant waived his right to file post trial motions and trial counsel brought this appeal. Subsequently trial counsel was replaced and Appellant's present counsel filed a brief raising ineffective assistance as the sole basis for a demand for a new trial.*fn1

[ 295 Pa. Super. Page 237]

Although issues not raised in post-verdict motions will not be considered on appeal, there is an exception where ineffective assistance of prior counsel is raised. In such a case, ineffectiveness of 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must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents Appellant.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. Webster, 490 Pa. 322, 416 A.2d 491 (1980). In the present case, this appeal presented the first opportunity for Appellant's present counsel to raise the issue. See e.g., Commonwealth v. Taggert, 258 Pa. Super.Ct. 210, 392 A.2d 758 (1978). Therefore, we shall consider the merits of Appellant's claim.

When confronted with a claim of ineffective assistance of counsel, we must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and if so, it must be determined whether the course chosen by counsel had some reasonable basis to effectuate his client's interest. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); Commonwealth v. Burrell, 286 Pa. Super. 502, 429 A.2d 434 (1981); Commonwealth v. Price, 278 Pa. Super. 255, 420 A.2d 527 (1980).

Appellant contends that trial counsel was ineffective for failing to call an alibi witness or for failing to request a continuance "until the witness could have been located." Further, Appellant suggests that counsel was ineffective for failing to explain to the jury his failure to call the witness.

The Commonwealth's case was based solely on the identification testimony of a water company clerk who was present during the robbery. A second clerk present during the robbery was unable to make a positive identification.

When the Commonwealth rested, Appellant's trial counsel, at side bar, requested a recess to wait for a defense witness who had been subpoenaed but had not appeared. Trial counsel ...


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