*2 CAVANAUGH, JJ. SHERTZ, Before JOHNSON and CAVANAUGH, Judge: Kibler,
In this Donald was tried before appellant, Loran Lewis and a and found jury guilty Honorable minors one count of sexual five counts of corruption trial, At abuse children. Schwartz, Esquire. Charles private de- public
On appeal, appellant represented by a behalf and office which filed brief on his fender’s this of that office before Court. argued member *3 he raises the issues of denial also filed a se brief in which pro counsel, sentence and excessive of effective assistance of and his co-de- the appellant of sentence between disparity the below in to fendants, failing grant error of the court and that he could obtain new counsel. a so continuance appellant contends se states: “The appellant In his brief appellant pro when the of counsel effective assistance that he was denied counsel his to have retained request refused trial court new counsel.” retain may withdraw so that he entirely different on raises counsel the below erred claimed that court counsel issues. Appellate a based on search evidence seized in (1) failing suppress to cause; in (2) probable without issued warrant allegedly which on an incident based for mistrial a motion denying in (3) and jury the and witnessed trial during occurred re- closing of the prosecutor’s because a mistrial denying the jury. marks to the issue a se brief pro filed has appellant
Since had appellant if the of trial effective assistance as well as a defender by public trial been at of new coun- appointment for the remand we would 72, Bachert, 271 Pa.Super. sel. See Commonwealth in this trial counsel A.2d 580 (1980). Although faced different, we are nevertheless were counsel appellate received has appellant as to whether question with he raised questions in with the that legal dealing ineffec- in counsel is his se brief and whether pro raised in his issues that appellant tive for to raise the failing whether own brief. We do not know in his pro the issues appellant considered brief. will separate
As a matter of this Court not consider policy the appel- se briefs filed briefs filed counsel and make a choice as to whether lant. The must appellant or wants to act on his own behalf through below to Case remanded the court determine his own through wants to act behalf or solely must that if his be instructed appeal. Appellant he desires to then counsel must proceed through present all and he will not be to file arguments permitted se brief. SHERTZ, filed a opinion. J. dissenting SHERTZ, J., Decision was rendered prior leaving bench of the Superior Pennsylvania. Court
SHERTZ, Judge, dissenting: *4 this The sole issue addressed the is whether by majority Court will consider an claim of ineffective assist- se ance of trial raised for the first time in a pro brief on direct where is on Appellant represented appeal counsel other than trial I conclude that counsel. under such circumstances to Appellant right waived his raise the issue.
The standard for issue of inef- determining fective assistance of counsel is properly preserved appeal
34 Webster, 490 recently reiterated in Commonwealth v. 491, 322, 324-325, (1981). 492
Pa.
416 A.2d
Issues not raised in
will not be
postverdict motions.
Blair,
31,
considered on
Commonwealth v.
460 Pa.
appeal.
exists, however,
(1975).
In the instant
Appellant
appeal
Therefore, in
to
counsel different from trial counsel.
order
counsel, it
neces-
ineffective trial
preserve
issue of
it on
Al-
appeal.
counsel to raise
direct
sary
so,
to
Appellant attempts
counsel failed
do
though appellate
so
of a pro
do
se brief.
by way
ineffectiveness of
appointed
an appellant
When
the same
appeal
represented
trial counsel is
of new counsel
appointment
a remand for
is entitled to
it
In
circumstances
trial counsel.
such
not associated with
will provide
counsel
assumed
cannot be
is entitled. Com-
which an appellant
zealous
advocacy
72,
In this
the issue of
the time
ineffective
assistance of counsel was when
counsel filed his
appellate
Blackburn,
brief with
this Court. Commownealth
Accordingly, would remand to below to determine to act own solely wants on his behalf, or Rather, his I would through appeal. reach the merits of the issues raised in the brief filed by Appellant’s counsel.
1. se brief he was denied effective contends that trial counsel because court denied his motions the trial to dismiss retained counsel and for new a continuance retain The basis for these motions was that he had no confidence handling in trial counsel’s of the case. Blackburn, Appellant’s pro 2. In se motion claimed ineffectiveness of Appel- both trial counsel and counsel. This Court reviewed only alleged appel- lant’s se brief insofar as it ineffectiveness of late counsel and found it to be merit. without