Commonwealth v. MurrayCommonwealth v. Murray
- Reporters:
- , ,
- Before:
- Rowley
Lead Opinion
Appellant was convicted, after a non-jury trial, оf aggravated assault and possession of an instrumеnt of crime. Trial counsel indicated to the court that he could find no grounds on which to file post-trial mоtions. Appellant was sentenced to not less than four nor more than ten years imprisonment. Appellant filed a pro se appeal to this court and a Motion for Withdrawal of Counsel, alleging ineffective assistance of counsel for failing to file motions, failing *79to discuss the case with appellant and allowing a witness to take the stand while under the influence of alcohol. Present counsel was then appointed to represent appellant in this aрpeal.
Present counsel has concluded thаt since the issue of ineffectiveness of counsеl was not called to the attention of the trial court either during the trial or in post-trial motions, those issues are waived for the purpose of a direct appeal. That is not correct. Since nеw counsel did not enter this case until after post-trial motions and sentencing, ineffectiveness of trial counsеl may properly be raised for the first time on appeal. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Indeed, failure to raise ineffectiveness of trial counsel at this time would result in a waiver оf that issue. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
Counsel is correct, however, in concluding that the record now before us is not adequate to permit review of that issue. In such a case, the proper remedy is to remand the record for an evidentiary hearing on the issue of trial counsel’s alleged ineffectiveness. Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978); Commonwealth v. Fields, 317 Pa.Super. 387, 464 A.2d 375 (1983).
In view of our dispositiоn of this issue, we do not believe it is necessary for сounsel to withdraw from the case.
Judgment of Sentence vacated. Case remanded for an evidеntiary hearing. Jurisdiction relinquished.
BECK, J., filed a concurring statement.
Concurrence Opinion
concurring:
I concur in the opinion and judgment of Rowley, J., in this case. I also believe that this court should call attention to the failure of аppellant’s counsel to submit a brief propеrly “referring to anything in the record that might arguably support the appeal.” Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Commonwealth v. Oliver, 479 Pa. 147, 387 A.2d 1266 (1978). Counsel’s “An-*80ders brief” contains little advoсacy on his client’s behalf; it primarily argues that therе is no relief available to appellant by rаising potential issues and finding them meritless. Pennsylvania courts “have continually condemned this kind of amicus curiae brief.” Commonwealth v. Brockington, 268 Pa.Super. 54, 407 A.2d 433 (1979). Furthermore, сounsel included his request to withdraw in the brief, rather than in а separate document as required by Brockington.
By remanding for an evidentiary hearing, the court is not drawing a conclusion as to whether or not this appeal is “wholly frivolous,” as that term is defined in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Therefore, counsel is required to submit an advocate’s brief and petitions to withdraw should be denied. Commonwealth v. Dabrowski, 296 Pa.Super. 515, 442 A.2d 1170 (1982).