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COMMONWEALTH PENNSYLVANIA v. ANTHONY J. VENERI (02/24/82)

SUPERIOR COURT OF PENNSYLVANIA


submitted: February 24, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY J. VENERI, JR., APPELLANT

No. 2165 Philadelphia, 1981, Appeal from the Judgment of Sentence of June 23, 1981 in the Court of Common Pleas of Delaware County, Pennsylvania, Criminal Division, Nos. 7166 D through 7166 L 1978.

COUNSEL

Anthony Veneri, appellant, in pro. per.

Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.

Spaeth, Brosky and Rowley, JJ.*fn*

Author: Per Curiam

[ 308 Pa. Super. Page 298]

Before us is appellant's direct appeal from his April 10, 1979, conviction by a jury of several crimes in connection with his attempted escape from the Delaware County Prison on Christmas Eve, 1978.*fn1 Pro se and counseled post-verdict motions were filed and the trial court filed an opinion and entered an order denying relief on March 21, 1980. Six days later, after receiving a counseled amended motion for a new trial and arrest of judgment, the trial court entered an order withdrawing and rescinding the earlier opinion and order to allow the post-trial motions to be argued before the court en banc. The motions were briefed and argued by counsel. On May 28, 1981, an order was entered by the court en banc denying the post-trial motions. On June 23, 1981, appellant was sentenced to a total of two to four years imprisonment, fines totaling $30.00 and costs of prosecution.*fn2 Appellant timely filed a

[ 308 Pa. Super. Page 299]

Counsel's assistance, of course, is needed because an exploration of the legal ground for complaint, an investigation of the underlying facts and a more articulate statement of the claims are functions of an advocate that are inappropriate for a judge or his staff.

Commonwealth v. Lenhart, 296 Pa. Super. 131, 133, 442 A.2d 331, 332 (1982) (citation and quotation omitted).

In light of the foregoing circumstances and pursuant to the power granted to us by 42 Pa.C.S.A. ยง 706 to "require such further proceedings to be had as may be just under the circumstances," we issue the following:

Order OF COURT

(1) The Delaware County Public Defender's Office shall within thirty (30) days file of record in the trial court and serve on the trial judge a concise statement of the matters complained of on appeal in accordance with Pa.R.A.P. No. 1925(b), or, in the alternative, within the same time period file in the trial court a petition to withdraw as counsel and brief in support thereof meeting the substantive requirements of Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981); Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974); and Commonwealth v. Liska, 252 Pa. Super. 103, 380 A.2d 1303 (1977).

(2) If the Delaware County Public Defender is permitted to withdraw, the trial court shall forthwith appoint new counsel who shall, within thirty (30) days file the statement of matters complained of on appeal in accordance with Pa.R.A.P. No. 1925(b) as described above.

(3) Within thirty (30) days after the filing of the Rule 1925(b) statement, the trial court shall file an order reinstating the earlier rescinded opinion by Judge Diggins or file an opinion for the court en banc. Upon the filing of such opinion, the record in this case is to be returned forthwith to this panel and listed at the same number and term. Commonwealth v. Coda, 283 Pa. Super. 408, 411, 424 A.2d 529, 531 (1981).

[ 308 Pa. Super. Page 301]

(4) Within thirty (30) days after the service and filing of the opinion, appellant's counsel shall file an advocate's brief in this court. Service shall be accomplished as provided by general rule.

(5) Within thirty (30) days after the filing and service of appellant's counseled advocate's brief, the Commonwealth, as appellee, shall file either a new brief or a written notice that it intends to stand upon the brief already submitted on its behalf. Service shall be accomplished as provided by general rule.

It is so ordered.


*fn* This case was reassigned to the above-named panel on October 21, 1982.


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