Commonwealth v. Patrick

383 A.2d 935, 477 Pa. 284, 1978 Pa. LEXIS 892

• Court: Supreme Court of Pennsylvania
• Decided: March 23, 1978
• Docket: 473
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

Appellant Anthony Patrick was convicted by a jury of selling the drug hydromorphone to an undercover agent in violation of the Controlled Substance, Drug, Device and Cosmetic Act.¹ The Superior Court affirmed appellant’s conviction. This Court granted allocatur. Appellant contends that (1) trial counsel was ineffective for failing to raise timely appellant’s claim that he was denied the right to a speedy trial under Pa.R.Crim.P. 1100 and the Sixth Amendment, (2) appellate counsel was ineffective for failing on appeal to the Superior Court to allege ineffectiveness of trial counsel, (3) certain statements of the district attorney during summation deprived appellant of a fair trial, and (4) the court improperly permitted introduction of expert testimony based on hearsay.² We remand for appointment of new counsel. We therefore do not reach the merits of the issues raised.

Appellant on this appeal is represented by the same counsel who represented him on appeal to the Superior Court, a member of the Montgomery County Public Defender’s office which represented him at trial. When an appellant raising ineffectiveness of trial counsel is represented by appointed counsel from the same office which represented him at trial, the proper procedure is to remand to allow appointment of new counsel not associated with trial counsel. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Sherard, 477 Pa. 430, 384 A.2d 234 (1977); Commonwealth v. Wright, 473 Pa. 398, 374 A.2d 1273 (1977). In such circumstances, it cannot “be assumed that appellate counsel will provide the zealous advocacy to which an appellant is entitled.” Commonwealth v. Fox, supra, 476 Pa. at 479, 383 A.2d at 200. Accordingly, we remand to the trial court for appointment of new counsel not a member of the Montgomery County Public Defender’s office, to represent appellant on the issue of ineffectiveness of trial counsel and any other issue not waived or finally litigated. Commonwealth v. Fox, supra.

POMEROY, J., filed a dissenting opinion.

1 . Act of April 14, 1972, P.L. 233, §§ 1 et seq., 35 P.S. §§ 780-101 et seq. (1977).

2 . We hear this appeal pursuant to the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, art. II, § 204(a), 17 P.S. § 211.204(a) (Supp.1977).