Commonwealth v. Lee

MANDERINO, Judge,

dissenting:

I dissent. One of the issues raised in this appeal is that trial counsel was ineffective for failing to introduce into evidence certain hospital records which may have provided the appellant with an alibi and which also would have tended to corroborate appellant’s testimony that the prosecution’s key witness had a bias against the appellant. This *508issue of the ineffectiveness of trial counsel is now being raised by appellate counsel who was also trial counsel. Under these circumstances, the issue of the ineffectiveness of trial counsel cannot be decided adversely to appellant. Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978); Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978). Appellant is entitled to a remand for the appointment of new counsel and the holding of an evidentiary hearing in the trial court on the issue of the ineffectiveness of trial counsel and on any other issue not waived or finally litigated.