Appeal from the Order of the Superior Court of Pennsylvania, filed January 4, 1985, at No. 2450 Philadelphia 1981, remanding for the appointment of new counsel on direct appeal from judgment of sentence entered September 4, 1981 in the Court of Common Pleas of Philadelphia County, Criminal Division at Nos. 111-112 Sept. Term 1976. Pa. Super. 491 A.2d 919 (1985).
Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Philadelphia, for appellant.
William T. Cannon, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Zappala, J., note a dissent.
The issue presented in this case is whether remand for the appointment of new counsel is required when a claim of ineffective assistance of counsel is made on direct appeal and it is clear from the record that the claim is meritless.
On July 1, 1976, John Meehan was killed during the course of a robbery in Philadelphia, Pennsylvania. On August 18, 1976, Darryl McBee (appellee) was arrested in Virginia while visiting his brother and sister-in-law. Subsequent
to his arrest, appellee had the benefit of advice from his brother, sister-in-law and Attorney John Garland, a friend of the family. All "essentially advised [appellee] to make no statement to the police concerning the charges." Appellee's brief at 2. At the extradition hearing on August 19, 1976, appellee was again advised by his brother, Garland and a court-appointed attorney to remain silent. Court of Common Pleas Slip op. at 29-30. On August 23, 1976, appellee was transported from Virginia to Philadelphia. During that trip, after being advised of his Miranda rights, appellee gave an inculpatory statement to the police.
Prior to appellee's trial in Philadelphia, appellee's thencounsel filed a motion to suppress the inculpatory statement given by appellee, alleging, inter alia, that the statement was given by appellee involuntarily. Prior to the suppression hearing, appellee was appointed new counsel.*fn1 Appellee's suppression motion was denied. In January, 1977, appellee was found guilty of murder in the second degree, robbery and criminal conspiracy. On appellee's first appeal to the Superior Court, that Court, en banc, reversed appellee's judgment of sentence and remanded the case for a new trial.*fn2 Commonwealth v. McBee, 267 Pa. Super. 49, 405 A.2d 1297 (1979). The Superior Court at that time held that an erroneous voir dire ruling required appellee to receive a new trial. In that same appeal, appellee also raised the issue of the admissibility of his inculpatory statement, which Superior Court disposed of as follows:
Appellant [appellee] contends that the lower court erred in admitting his confession to police because it was involuntary. Specifically, he claims that this confession resulted from physical abuse, threats, and cajolery by ...