Commonwealth v. BeecherCommonwealth v. Beecher
- Reporters:
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- Before:
- Price
On October 7, 1977, appellant was convicted by a jury of robbery,1 theft by unlawful taking,2 simple assault,3 aggravated assault,4 conspiracy,5 and attempted murder.6 Post-trial motions in arrest of judgment and for a new trial were denied, and appеllant was sentenced to concurrent three to six year terms of imрrisonment on the robbery and aggravated assault charges. Sentenсe was suspended on the other convictions. Appellant takes this appeal from the judgment of sentence alleging that (1) the trial court improperly allowed a Commonwealth witness to make an in-сourt identification of him without first determining whether that identification was tainted by a suppressed photographic identification, (2) the trial court erred in permitting a Commonwealth witness, on cross-examination, to testify regarding the suppressed photographic identification, and (3) hе was denied effective assistance of counsel at trial and in the preparation and argument of post-trial motions. We remand fоr appointment of new counsel and, therefore, decline to review the merits of these issues.
Appellant is represented on this appeal by members of the Delaware County Public Defender‘s Officе, the same office that represented him at every stage of thе proceedings in *311this case.7 It is well-settled in this Commonwealth that when an appеllant raising ineffectiveness of trial counsel on appeal is rеpresented by appointed counsel from the same officе that represented him at trial, the proper course is to remаnd to the court of common pleas to allow appointment of new counsel not associated with trial counsel. Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977). This rule is based uрon the premise that the mere association of appellate counsel with the same office that represented appellant at trial has the appearance of a cоnflict of interest that threatens counsel’s duty of zealous advocacy. In such circumstances, “[t]he nature of the criminal process nеcessitates that even the appearance of partiality be scrupulously avoided.” Commonwealth v. Crowther, 241 Pa.Super. 446, 361 A.2d 861 (1976). Accordingly, we remand for the apрointment of new counsel not associated with the Delaware Cоunty Public Defender’s Office to represent appellant on his appeal on the issue of ineffectiveness of trial counsel and any other issues not waived or finally litigated.
Case remanded for appointment of new counsel, after which the appeal will be given a new briefing schedule and relisted for argument.
SPAETH, J., concurs in the result.
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. Although neither the Commonweаlth nor appellant raised the issue of appointment of new counsel, we may address the issue sua sponte. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). We note, however, thаt after this appeal had been filed and docketed, the record forwarded to this court, and argument listed, the Delaware County Public Dеfender’s Office filed a petition in the court below to withdraw its apрearance and to have new counsel appointed. The Honorable Clement J. McGovern, Jr., having before him no record or issues upon which to act, denied the petition. Had the public defender’s office acted with more dispatch in petitioning for withdrawal, therе would have been no need for this court to remand for appointment of new counsel. Such inattentiveness on the part of the Delаware County Public Defender’s Office is inexcusable, particularly in light of Commonwealth v. Lennox, 270 Pa.Super. 254, 411 A.2d 514 (1979).