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COMMONWEALTH PENNSYLVANIA v. HENRY ALBERT (07/10/89)

decided: July 10, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
HENRY ALBERT, APPELLANT



Appeal from the Order of the Superior Court entered December 22, 1987, at No. 1918 Philadelphia 1987, affirming the Order of the Court of Common Pleas of Luzerne County at No. 886, 1984.

COUNSEL

Gerald R. Schultz, for appellant.

Correale Stevens, Dist. Atty., Joseph C. Giebus, Asst. Dist. Atty., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ.

Author: Nix

[ 522 Pa. Page 332]

OPINION

In this appeal by allowance, appellant seeks review of the order of the Superior Court affirming the denial of his petition under the Post Conviction Hearing Act (PCHA).*fn1

[ 522 Pa. Page 333]

Appellant urges this Court to grant relief, arguing that his trial counsel rendered ineffective assistance. Appellant was convicted of robbery and sentenced to three to six years imprisonment. For the reasons that follow, we reverse the Superior Court order and remand this matter for the appointment of new PCHA counsel.

The Superior Court, in an unpublished memorandum opinion, 518 Pa. 647, 544 A.2d 959 relied on Commonwealth v. Sanford, 299 Pa. Super. 64, 445 A.2d 149 (1982) and on Pa.R.App.P. 2101 in affirming the denial of the PCHA petition. In Sanford the Superior Court stated that it would not consider the merits of an appeal in which the brief is inadequate and defective. Id., 299 Pa. Superior Ct. at 67-68, 445 A.2d at 150-51. The court below examined the brief submitted by appellant and found that it lacked compliance with the Rules of Appellate Procedure and that the legal arguments asserted therein were "disjointed, general and unintelligible." No. 1918 PHL. 1987, Super. Ct. slip op. at 1. Appellant does not challenge the Superior Court's reasoning for its summary disposition, rather he seeks review only of the merits of his claim of ineffectiveness of prior counsel.

Under our law, ineffectiveness of counsel must be raised in the first proceeding wherein the appellant secures new counsel following the representation by the allegedly ineffective counsel. Commonwealth v. Johnson, 516 Pa. 407, 412, 532 A.2d 796, 799 (1987); Commonwealth v. Nelson, 489 Pa. 491, 495, 414 A.2d 998, 1000 (1980); Commonwealth v. Hubbard, 472 Pa. 259, 276 n. 6, 372 A.2d 687, 695 n. 6 (1977), appeal after remand, 485 Pa. 353, 402 A.2d 999 (1979). Appellant was represented at trial and on direct appeal by the same attorney.*fn2 The instant complaints are

[ 522 Pa. Page 334]

    directed to the stewardship of prior counsel both at trial and on appeal. It is charged that prior counsel was ineffective in his representation of appellant on direct appeal in that he admitted appellant's criminal liability.*fn3 Prior counsel is also charged with ineffective representation at trial because of his failure to call ...


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