Commonwealth v. Kibler , 294 Pa. Super. 30 ( 1982 )

CAVANAUGH, Judge:

In this case, the appellant, Donald Kibler, was tried before the Honorable Loran Lewis and a jury and found guilty of five counts of corruption of minors and one count of sexual abuse of children. At trial, the appellant was represented by private counsel, Charles Schwartz, Esquire.

On appeal, appellant was represented by the public defender’s office which filed a brief on his behalf and a member of that office argued before this Court. Appellant also filed a pro se brief in which he raises the issues of denial of effective assistance of counsel, excessive sentence and disparity of sentence between the appellant and his co-defendants, and error of the court below in failing to grant the appellant a continuance so that he could obtain new counsel. In his pro se brief appellant states: “The appellant contends that he was denied effective assistance of counsel when the trial court refused his request to have retained counsel withdraw so that he may retain new counsel.”

Appellant’s counsel on appeal raises entirely different issues. Appellate counsel claimed that the court below erred (1) in failing to suppress evidence seized based on a search warrant allegedly issued without probable cause; (2) in denying a motion for mistrial based on an incident which occurred during trial and witnessed by the jury and (3) in denying a mistrial because of the prosecutor’s closing remarks to the jury.

Since appellant has filed a pro se brief raising the issue of effective assistance of trial counsel, if the appellant had been represented at trial by a public defender as well as on appeal, we would remand for the appointment of new counsel. See Commonwealth v. Bachert, 271 Pa.Super. 72, 412 A.2d 580 (1980). Although in this case, trial counsel and appellate counsel were different, we are nevertheless faced with the question as to whether the appellant has received legal assistance in dealing with the questions that he raised in his pro se brief and whether appellate counsel is ineffective for failing to raise the issues that appellant raised in his own brief. We do not know whether appellate counsel has considered the issues that the appellant raised in his pro se brief.

As a matter of policy this Court will not consider separate briefs filed by counsel and pro se briefs filed by the appellant. The appellant must make a choice as to whether he wants to act on his own behalf or through counsel.

Case remanded to the court below to determine whether appellant wants to act solely on his own behalf or through counsel in his appeal. Appellant must be instructed that if he desires to proceed through counsel, then counsel must present all arguments and he will not be permitted to file a pro se brief.

SHERTZ, J. filed a dissenting opinion. Decision was rendered prior to SHERTZ, J., leaving the bench of the Superior Court of Pennsylvania.