No. 1660 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County, No. 2845 of 1980.
Robert F. Pappano, Assistant Public Defender, Media, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
Brosky, Johnson and Montgomery, JJ.
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This appeal arises from appellant's conviction of lotteries, gambling devices, criminal solicitation and criminal conspiracy, and his subsequent aggregate sentence of seven and
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one-half (7 1/2) to fifteen (15) years imprisonment and $15,000.00 fine.
Appellant couches all of his basic claims in ineffectiveness of counsel allegations, thereby rendering inapplicable the doctrine of waiver.*fn1 As a result of our disposition of appellant's first assignment of error, however, we will not reach his other claims.
Appellant alleges that he was denied effective assistance of counsel in that trial counsel was permitted to withdraw after the denial of post-verdict motions but prior to sentencing.*fn2 He specifically argues that counsel's claim of a potential conflict of interest leads to the presumption that the same potential conflict existed prior to and during trial.
Counsel who is alleging ineffectiveness must, ordinarily, set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). In the instant matter, however, appellant was unable to pursue such a course of action as trial counsel's motion for leave to withdraw merely stated that a potential conflict of interest existed. Furthermore, appellant claims that he was not advised of the motion nor a hearing upon it, which claims are not disputed by our review of the record. In fact, we find nothing in the record to indicate that a hearing was held on the motion.
If such a potential conflict existed prior to the filing of the motion, it may have permeated the entire proceedings. Therefore, given the circumstances and our inability to dispose of the issue on the record before us, we must remand for an evidentiary hearing on whether ...