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filed: March 29, 1985.



John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Spaeth, President Judge, and Brosky and Montgomery, JJ.

Author: Spaeth

[ 341 Pa. Super. Page 19]

This is an appeal from an adjudication of delinquency and disposition order. Appellant argues that the evidence was insufficient to support the adjudication of delinquency; that the disposition order was erroneous in that it conditioned his release upon payment of restitution and the satisfaction of outstanding judgment orders; and that hearing counsel was ineffective. After an independent review of the record, we have concluded that the opinion of the trial court ably disposes of appellant's sufficiency claim, and we therefore affirm the adjudication of delinquency. However, since we cannot tell from the record whether the terms of the disposition order impermissibly condition the continued incarceration of a possible indigent person upon payment of restitution, we remand for further proceedings consistent with this opinion. As to appellant's ineffectiveness claim, we note that counsel on appeal is from the same public defender's office as hearing counsel. The usual remedy in such a situation is to remand for the appointment of new counsel. See Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Serianni, 337 Pa. Super. 309, 486 A.2d 1349 (1984) (en banc). In the interest of judicial economy, we now order that should appellant appeal from the order entered on remand and raise the same ineffectiveness claim, the trial court shall appoint new counsel to argue that claim.

[ 341 Pa. Super. Page 20]

On November 24, 1982, appellant was charged by petition of delinquency with aggravated assault, reckless endangerment and criminal conspiracy. The incident out of which these charges arose occurred on October 29, 1982. The victim testified that as he walked down a street, he saw appellant, appellant's brother, and two others watching him from a nearby hillside. N.T. at 45, 47-48. Appellant was carrying a rifle. N.T. at 32. Upon seeing the group, the victim ducked into the vestibule of a nearby bar. When he peered out of the door to see if the group was still there, he saw appellant aim the rifle at him, and he was almost immediately struck in the eye with a pellet. N.T. at 30, 34. The victim was hospitalized for six days, and at the time of the hearing the pellet remained in his eye. N.T. at 34-35. The victim also testified that there was previous animosity between himself and appellant. N.T. at 33-34.

On December 2, 1982, two days before appellant's eighteenth birthday, a hearing was held on the petition to have appellant adjudicated a delinquent child. After hearing the testimony of the victim, and that of several witnesses presented by appellant, the trial court adjudicated appellant a delinquent child. The court then proceeded to the dispositional phase of the hearing. It noted: that appellant had two previous adjudications of delinquency, one of them for aggravated assault, N.T. at 96-99; that according to the victim's testimony, appellant had continued, after the victim's release from the hospital, to threaten the victim, and had made gestures mimicking the firing of a rifle, and had laughed, N.T. at 36-37, 113; that appellant had been placed on probation for each of his previous offenses, and had committed each subsequent offense while on probation, N.T. at 98-99; and finally, that a judgment order imposed against appellant's parents as a consequence of appellant's previous offense had remained, for the most part, unpaid, N.T. at 98. These factors led the court to conclude that "a commitment is absolutely essential and necessary." N.T. at 110. The court also determined that payment of restitution was necessary to teach appellant "that we have laws which

[ 341 Pa. Super. Page 21]

    apply to him and his brother just the same as they do anybody else; . . ." N.T. at 110. The court then outlined and attempted to clarify the disposition it wished to impose:

THE COURT: He's committed to the Youth Development Center at New Castle, Intensive Treatment Unit, for a minimum of eighteen months. No release to the community is going to be considered until all restitution has been paid and all judgments have been paid. In short, he is not going to be released back into the community to cause more crimes or delinquency and cause more damage to the community until, through his earnings, while he is in placement, he has earned enough to pay the five hundred-some dollars or what it is that he owes to the prior damages that he caused to the City of Clairton, and the damages caused to Montese Perkins [the victim].

MR. BECHTOLD [probation officer]: Your Honor, I haven't had any success in residents of the I.T.U. specifically gaining employment --

THE COURT: I think he will gain some employment, not while he is in the I.T.U., but when they come to me to release him to the ...

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