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COMMONWEALTH PENNSYLVANIA v. DONALD BYERS (03/12/84)

argued: March 12, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD BYERS, JR., APPELLANT



COUNSEL

Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.

Melinda Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Before Spaeth, President Judge, and Cavanaugh, Brosky, Rowley, McEWEN, Tamilia and Johnson, JJ.

Author: Brosky

BROSKY, Judge:

This appeal is from the judgment of sentence imposed after a jury found appellant quilty of unlawful restraint and criminal conspiracy. Appellant argues that trial counsel, who is from the same public defender's office as appellate counsel, was ineffective in failing to brief post-verdict motions. We find that counsel's ineffectiveness os not apparent on the record and, therefore, we vacate the judgment of sentence and remand for appointment of new counsel and for consideration of any claims of ineffective assistance raised by new counsel.

Appellant was tried by a jury and, on September 16, 1980, was found guilty of the charges noted above. The Office of the Public Defender of Allegheny County represented appellant at trial and filed post-verdict motions, which the trial court denied on December 4, 1980, by an order stating: "[A]fter due consideration of oral argument and briefs filed, motion for New Trial and Arrest of Judgment os denied." In the opinion filed in support of this order, the trial court summarizes the evidence presented at trial, but does not express its view in the sufficiency of the evidence; instead the court states: "[C]counsel did not submit a written brief on the errors allegedly committed by the Court. . . . [T]he trial Court not having the benefit of counsel's legal theory underlying the assertion of error can thus consider the claim abandoned." The Office of the Public Defender of Allegheny County filed a notice of appeal from the judgment of sentence, and this court denied counsel's petition for leave to withdraw.

Counsel's general, rather than specific, post-verdict motions challenging the sufficiency of the evidence did not in themselves waive the issue of sufficiency for the trial court's review, since the motions were filed before this court's opinion in Commonwealth v. Holmes, 315 Pa. Super. 256, 461 A.2d 1268 (1983). However, issues preserved by post-verdict motions will still be deemed waived of ther are neither briefed nor argued to the trial court. See Commonwealth v. Holzer, 480 Pa. 93, 398 A.2d 101 (1978); Commonwealth v. Williams, 476 Pa. 557, 570, 383 A.2d 503, 509 91978); Commonwealth v. Pittman, 320 Pa. Super. 166, 466 A.2d 1370 (1983).*fn1 It was pursuant to this rule of sufficiency. As a result, as athe Supreme Court noted on Holzer, supra, when it found itself in the lower court's analysis and resolution of those issues, review of which would frustrate the policies underlying Blair.*fn2

We recognize that the trial court's order states that it was entered after "oral argument and briefs filed", and that this in inconsistent with the statement in the trial court;s opinion that "counsel did not submit a written brief" and the court "[did] not hav[e] the benefit of counsel's legal theory. . . ." Nevertheless, since counsel failed to make a copy of his brief or a transcript of the proceedings part of the record, we are unable to determine what issues counsel argued, and the issues raised in the post-verdict motions must therefore be deemed waived. Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173, cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (19790.*fn3

However, appellate counsel, who is from the same office as the trial counsel, aruges that trial counsel was ineffective for failing to preserve the issue of the sufficiency of the evidence. It is settled that when trial counsel and appellate counsel are from the same defender's office, and the argument an appeal is that trial counsel was ineffective, we must remand for the appointment of new counsel before we may reject the ineffectiveness claim. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). This rule has most recently been applied by this court on Commonwealth v. Serianni, 33 Pa. Super. 309, 486A.2d 1349 (1984) (allocatur denied, July 24, 1985) (en banc). The only exception to this rule is that stated in Commonwealth v. Fox, supra:

While this court will entertain a claim of ineffective assistance of counsel on appeal by the same attorney who served as trial counsel if reversible error is apparent on the record before us, we will not reject such a claim without a remand for appointment of new counsel.

Id. 476 Pa. 479, 383 A.2d at 201.*fn4

Thus, we must examine whether reversible error is apparent on the record before us. In order to find reversible error in the context of a claim of ineffective assistance of counsel we must conclude that: (1) the underlying issue is of arguable merit; (2) counsel had no reasonable basis for his actions; and (3) counsel's actions were prejudicial to the defendant. See Commonwealth v. Pierce, 345 Pa. Super. 324, 498 A.2d 423 (1986) (en bannc); Commonwealth v. Larkins, 340 Pa. Super. 56, 489 A.2d 837 (1985).

Our Supreme Court in Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980), stated that if counsel fails to raise an issue in post-verdict motions he is deemed to be ineffective only is the issue is of arguable merit. We believe this holding is equally applicable to a case in which counsel fails to preserve an issue by briefing it for or arguing it to the post-verdict court on the record. Thus, here, a necessary (although not sufficient) condition to finding that reversible error is apparent on ...


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