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COMMONWEALTH PENNSYLVANIA v. WILLIAM WHITING (11/18/86)

filed: November 18, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM WHITING, APPELLANT



Appeal from the Judgment of Sentence of November 13, 1985 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 2048-2050 July Term, 1983.

COUNSEL

Dennis J. Cogan, Philadelphia, for appellant.

Elizabeth J. Chambers, Assistant District Attorney, Philadelphia, for Com., appellee.

Olszewski, Hoffman and Roberts, JJ. Roberts, J., concurs in the result.

Author: Hoffman

[ 358 Pa. Super. Page 469]

This is an appeal from the judgment of sentence for burglary and conspiracy. Appellant contends that (1) the trial court erred in denying his request for new counsel and (2) trial counsel was ineffective in failing to (a) object to the trial court's questioning of appellant; (b) object to the trial court's missing witness instruction; (c) object to the Commonwealth's introduction of hearsay evidence; and (d) call a police detective to impeach Commonwealth witnesses through the use of prior inconsistent statements. For the reasons that follow, we remand to the trial court for an

[ 358 Pa. Super. Page 470]

    evidentiary hearing on three of appellant's ineffectiveness claims, and direct the trial court to file a supplement to its opinion addressing appellant's contention that his request for new counsel was improperly denied.

On August 1, 1980, Marion Geisz surprised two men as they were burglarizing her home. The two men fled through a side window. Geisz and some of her neighbors chased the men. Appellant was later arrested and charged with the burglary. Prior to his trial by jury, appellant requested that new counsel be appointed to represent him. This request was denied and appellant went to trial represented by an assistant public defender. At trial, the Commonwealth presented the testimony of several witnesses, including Geisz and her neighbor, both of whom identified appellant as one of the men they saw leaving through the side window of Geisz's home. Appellant testified on his own behalf, denying any involvement in the burglary, and stated that he was not the subject of the chase, but a participant in chasing the true offenders. On December 14, 1983, appellant was found guilty of burglary and criminal conspiracy. On November 13, 1985, appellant was sentenced to ten-to-twenty years imprisonment on the burglary charge, and five-to-ten years imprisonment on the conspiracy charge, sentences to run concurrently. This appeal followed.

Appellant first contends that the trial court erred in denying his request to appoint new counsel. The decision whether to appoint new counsel rests in the discretion of the trial court. See Commonwealth v. Tyler, 468 Pa. 193, 198, 360 A.2d 617, 619 (1976); Commonwealth v. Bell, 328 Pa. Superior Ct. 35, 47, 476 A.2d 439, 446 (1984). Although an indigent defendant is entitled to free counsel, he is not entitled to free counsel of his choice, Commonwealth v. Tyler, supra 468 Pa. at 197, 360 A.2d at 619, and he may reject appointed counsel only "for good cause shown." Id. (quoting Commonwealth v. Johnson, 428 Pa. 210, 213, 236 A.2d 805, 807 (1968)); Commonwealth v. Bell, supra. A "mere dissatisfaction" with appointed counsel is inadequate

[ 358 Pa. Super. Page 471]

    to establish "good cause shown." Commonwealth v. Bell, supra. If the defendant can show that irreconcilable differences exist between his counsel and himself, however, a trial court's refusal to appoint new counsel is an abuse of discretion and the defendant is entitled to a new trial. Commonwealth v. Tyler, supra 468 Pa. at 197-98, 360 A.2d at 619; Commonwealth v. Bell, supra.

Although the lower court filed an opinion in this matter, it neither addressed this contention in its opinion nor indicated the place in the record where the reasons for its denial could be found. Pa.R.A.P. 1925(a) mandates that:

Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.

Id. The purpose of Rule 1925(b) is to provide the appellate court with the lower court's reasoning in support of its determination, thereby insuring meaningful appellate review. See Commonwealth v. Mueller, 341 Pa. Superior Ct. 273, 278, 491 A.2d 258, 261 (1985); Commonwealth v. Coda, 283 Pa. Superior Ct. 408, 411, 424 A.2d 529, 530-31 (1981). Here, we do not have the benefit of a discussion by the trial court of the reasons for its decision. Moreover, we have carefully reviewed the record and find conflicting evidence regarding whether irreconcilable differences existed between appellant and his trial counsel.*fn1 Because we find it difficult to determine whether the court abused its

[ 358 Pa. Super. Page 472]

    discretion absent its express findings on the issue, we are compelled to remand to the trial court with a direction to supplement its opinion with its reasons for denying appellant's request.

Appellant next raises four claims of ineffective assistance of trial counsel. In evaluating ineffective assistance of counsel claims, a reviewing court must first determine whether the issues underlying the claim are of arguable merit. Commonwealth v. Pierce, 345 Pa. Superior Ct. 324, 327, 498 A.2d 423, 425 (1985) (en banc), allocatur granted 510 Pa. 244, 507 A.2d 368 (1986). If the claim has merit, the court must then determine "whether the course chosen by counsel had some reasonable basis aimed at promoting the defendant's interests." Id. When a claim has arguable merit, and there has been no evidentiary hearing below to determine if a reasonable basis exists for counsel's actions, this court will remand for an evidentiary hearing. Commonwealth v. Spotts, 341 Pa. Superior Ct. 31, 33, 491 A.2d 132, 134 (1985). Additionally, appellant must show that counsel's ineffectiveness so prejudiced his case that he was deprived of a fair trial. Commonwealth v. Pierce, supra 345 Pa. Superior Ct. at 329, 498 A.2d at 426. In this analysis, counsel is presumed to be effective, Commonwealth v. Norris, 305 Pa. Superior Ct. 206, 210, 451 A.2d 494, 496 (1982), and appellant bears the burden of establishing that trial counsel was ineffective. Commonwealth v. Jones, 298 Pa. Superior Ct. 199, 205, 444 A.2d 729, 732 (1982).

Here, there has been no evidentiary hearing on appellant's ineffectiveness claims. We must therefore examine each of appellant's claims, determine whether it has arguable merit and has prejudiced appellant, and, if so, remand for an evidentiary hearing to ...


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