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COMMONWEALTH PENNSYLVANIA v. KENNETH JONES (02/01/88)

filed: February 1, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
KENNETH JONES, A/K/A KENNETH JOHNSON, A/K/A ROBERT JOHNSON, APPELLEE



Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. CC 8207406A.

COUNSEL

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellant.

Alonzo Burney, McKeesport, for appellee.

Montemuro, Watkins and Montgomery, JJ.

Author: Montgomery

[ 370 Pa. Super. Page 592]

Appellee was convicted, following a jury trial, of robbery, theft by unlawful taking or disposition, and criminal conspiracy. The appellee filed a pro se Motion for a New Trial and/or In Arrest of Judgment, wherein he raised, inter alia, several claims of trial counsel's ineffectiveness. A counseled post-verdict motion was subsequently filed by trial counsel on the appellee's behalf, in which she raised issues of her own ineffectiveness in representing the appellee. The trial judge appointed the Public Defender of Allegheny County to represent the appellee in post-trial matters. On June 25, 1984, the trial court apparently held an evidentiary hearing to inquire into the claims of ineffective assistance and also entertained oral argument on the appellee's post-verdict motions. The appellee's trial counsel testified as a Commonwealth witness regarding the quality of her representation on the appellee's behalf. At the conclusion of the argument, the trial judge took the appellee's motions under advisement. Subsequently, on May 15, 1987, an order was filed by the trial court granting the appellee's motion for a new trial and denying the appellee's

[ 370 Pa. Super. Page 593]

    motion in arrest of judgment. This appeal by the Commonwealth was timely pursued.*fn1 For the reasons which follow, we reverse the order of the trial court.

In granting the appellee's motion for a new trial, the court noted that the appellee's trial counsel testified at the evidentiary hearing and that "she admitted her ineffectiveness in several respects." However, in the trial court's opinion, dated July 20, 1987, the court stated:

After a review of the record, the Court issued its order and was satisfied that ineffectiveness of trial counsel had been established and that such was prejudicial to the defendant. Although, any one of the allegations of ineffectiveness may not have been sufficient, the cumulative effect of the several allegations did establish the ineffectiveness.

The sole issue presented by the Commonwealth is whether the court erred in concluding that the appellee was denied effective representation due to the cumulative effect of counsel's conduct, although each individual claim of ineffectiveness when analyzed separately, fails to substantiate such a finding.

Initially, we must consider whether this order is an appealable order. The Commonwealth submits that while the order from which this appeal is taken is an interlocutory order, it is appropriately before this Court because the question involved herein is purely a matter of law. See, Commonwealth v. White, 482 Pa. 197, n. 2, 393 A.2d 447, n. 2 (1978); Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977). See also, Pa.R.A.P. 311(a)(5). We agree that the issue involved in this appeal is purely a question of law and that we therefore have jurisdiction to decide it.

The decision of the trial court to grant a new trial will not be reversed absent an abuse of discretion or an error of law. Commonwealth v. Palmer, 319 Pa. Super. 56, 465 A.2d 1050 (1983). However, after careful review, we ...


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