No. 377 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 1030 June Term, 1979
Barry H. Oxenburg, Philadelphia, for appellant.
Nancy D. Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Watkins and Montgomery, JJ.
On September 28, 1979, appellant, Edward Dobson, was convicted of unlawful taking or disposition and acquitted of theft by receiving stolen property. Post-verdict motions were filed and denied. Dobson asserts that his trial counsel was ineffective. He is represented on appeal by new counsel. We remand.
Dobson remonstrates that his trial counsel was ineffective for the following reasons:
1. Appellant was denied the effective assistance of counsel where said counsel failed to raise and/or litigate the issue of double jeopardy or that prosecution was barred by a former prosecution and acquittal for the same offense.
2. Appellant was denied the effective assistance of counsel for failing to pursue the violation of appellant's rights to a prompt trial.
We must first review the procedural history of this case which is critical to our resolution of the appeal.
On January 12, 1979, Dobson was arrested and charged with theft by unlawful taking or disposition, theft by receiving stolen property, and simple assault. His trial began in the Municipal Court of Philadelphia on May 7, 1979, however, a mistrial for which Dobson moved was granted on May 8, 1979. On June 11, 1979, a second trial was held in Municipal Court after which a recorded verdict was entered finding Dobson guilty of simple assault and not guilty of theft by unlawful taking or disposition and theft by receiving stolen property. The record, however, contains evidence that the trial court intended to convict Dobson of theft by unlawful taking or disposition and theft by receiving stolen property alone.
A de novo appeal was then filed. Trial counsel stated in his notice of appeal that Dobson appealed from convictions of theft by unlawful taking and theft by receiving stolen property. The de novo trial was held in the Philadelphia ...