Commonwealth v. Lennox
Commonwealth v. Lennox
Opinion of the Court
Following a jury trial commenced on December 9, 1975, appellant was convicted of recklessly endangering another person
On appeal from the judgment of sentence, appellant raises the following contentions: (1) that his right to a speedy trial under Pa.R.Crim.P. 1103
In the case of Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), our supreme court held that issues not presented to the trial court in compliance with Pa.R.Crim.P. 1123, i. e., in written post-trial motions, will, not be considered by our trial and appellate courts. In subsequent decisions, the court proceeded to adulterate this requirement by holding that issues would be seen as preserved if briefed before the post-verdict motion court and considered on the merits by that court. See, e, g., Commonwealth v. Jones, 478 Pa. 172, 386 A.2d 495 (1978); Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977). In recent decisions, however, the supreme court has returned to its initial posture that issues not presented to the trial court in written post-trial motions are waived. See Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Twiggs, 485 Pa. 481, 402 A.2d 1374 (1979).
In the instant case, appellant filed boiler-plate post-trial motions alleging that: (1) the verdict was contrary to the evidence; (2) the verdict was contrary to the weight of the evidence; (3) the verdict was contrary to the law; and (4) causes appear on the record which are errors of law. The court of common pleas refused to consider the issues of whether appellant’s demurrer and his motion to dismiss under Rule 1100 were improperly denied, and cited Commonwealth v. Blair, supra, to support its action. Under these
We are compelled, however, to remand the case to the court of common pleas for appointment of appellate counsel not associated with the Delaware County Public Defender’s Office. Our supreme court has held that when the issue of ineffectiveness of trial counsel is raised on appeal, the appellant is entitled to a remand for appointment of new counsel not associated with trial counsel. Commonwealth v. Glasco, 481 Pa. 490, 393 A.2d 11 (1978). In the instant case, appellant was represented at trial and throughout the post-trial motions stage by Edward Jay Weiss; he was represented at his sentencing hearing by Theodore Melenchuk, and on appeal, he is being represented by Roy Davis. All three counsel were associated with the Delaware County Public Defender’s Office during the time they represented appellant. Since the issue of ineffectiveness of trial counsel is being raised on appeal and appellate counsel and trial counsel were members of the same public defender’s office, we must remand this case to the Court of Common Pleas of Delaware County for appointment of counsel not associated with the Delaware County Public Defender’s Office.
Case remanded for appointment of new counsel.
. 18 Pa.C.S. § 2705.
. 18 Pa.C.S. § 2701(a)(3).
. Since the complaint in the instant case was filed on October 26, 1974, Pa.R.Crim.P. 1100(a)(2) applies. Section (a)(2) provides that:
“Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.”
. Although the issue of appointment of new counsel was not raised by appellant, we may raise the issue sua sponte. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977).
Dissenting Opinion
dissenting:
I respectfully dissent.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. John LENNOX, Appellant
- Cited By
- 10 cases
- Status
- Published