Commonwealth v. Fox, 476 Pa. 475, 477, 383 A.2d 199, 200 (1978). See Commonwealth v. Lutz, 483 Pa. 518, 523 n. 4, 397 A.2d 787, 789 n. 4 (1979); Commonwealth v. Glasco, 481 Pa. 490, 492-93, 393 A.2d 11, 12 (1978); Commonwealth v. Bundy, 480 Pa. 543, 545, 391 A.2d 1018, 1019 (1978); Commonwealth v. Sherard, 477 Pa. 429, 430, 384 A.2d 234, 234 (1977); Commonwealth v.Wright, 473 Pa. 395, 398, 374 A.2d 1272, 1273 (1977); Commonwealth v. Crowther, 241 Pa. Super. 446, 448, 361 A.2d 861, 862 (1976). See also Commonwealth v. Via, 455 Pa. 373, 377, 316 A.2d 895, 898 (1974).

Moreover, this rule applies equally in instances where the allegedly ineffective counsel was co-counsel or merely an associate in the same office. See Commonwealth v. Glasco, 393 A.2d 11, 12 (Pa. 1978) (subsequent counsel not required to raise the ineffectiveness of allegedly ineffective counsel when they were all members of the same public defender's office); Commonwealth v. Fox, 383 A.2d at 200 (attorney need not allege ineffectiveness of co-counsel). Nonetheless, our Court has held that where trial counsel was privately retained, but associated with a public defender's office, and where subsequent counsel is an attorney at the same public defender's office, a different result follows.

The procedural importance of the preliminary hearing and evidentiary requirement for the magistrate decision was reemphasized by the comprehensive discussion in what was obviously a very political course of events and criminal proceedings. Furthermore, I would perceive that if ineffectiveness of counsel can be raised by collateral attack on criminal conviction, Com. v. Glasco, 481 Pa. 490, 393 A.2d 11 (1978), total denial of counsel, likewise, constitutionally requires that a remedy be provided. The Colorado Supreme Court in Schwader, 474 P.2d 607 has recognized the significance of the preliminary hearing in reference to its rules of criminal procedure which creates a constitutional right to counsel at the proceedings by citing Coleman, 399 U.S. 1, 90 S.Ct. 1999.

We may not assume in such cases that ". . . appellate counsel will provide the zealous advocacy to which an appellant is entitled." Commonwealth v. Glasco, 481 Pa. 490, 493, 393 A.2d 11, 12 (1978); Commonwealth v. Fox, supra. The lack of fervid representation is underscored by appellee in the present case.

Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978). See also Commonwealth v. Glasco, 481 Pa. 490, 393 A.2d 11 (1978); Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Sherard, 477 Pa. 429, 384 A.2d 234 (1977); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977). I would, therefore, reverse the order of the Superior Court, vacate judgment of sentence, and order a new trial.

Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974). Accord, Commonwealth v. Glasco, 481 Pa. 490, 393 A.2d 11 (1978); Commonwealth v. Bundy, 480 Pa. 543, 391 A.2d 1018 (1978); Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978); Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Sherard, 477 Pa. 429, 384 A.2d 234 (1977); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977). This case was reassigned to the writer on September 21, 1979, for the purpose of preparing an opinion expressing the views of a majority of this Court.

Likewise, the failure to file a direct appeal and raise a claim of trial counsel's ineffectiveness does not constitute a waiver where an appellant would be represented on appeal by his trial attorney. Commonwealth v. Glasco, 481 Pa. 490, 393 A.2d 11 (1978). The PCHA petition filed in this case by counsel, other than trial counsel, was the first proceeding in which appellant was represented by counsel other than trial counsel whose ineffectiveness is alleged. Under these circumstances there is no waiver. Commonwealth v. Fox, supra; Commonwealth v. Glasco, supra.

The law in Pennsylvania has long recognized that circumstantial evidence may be sufficient to uphold a conviction where the inferences arising therefrom establish facts beyond a reasonable doubt. Commonwealth v.Glasco, 481 Pa. 490, 393 A.2d 11 (1978); Commonwealth v.Treftz, 465 Pa. 614, 351 A.2d 265 (1976). The massive amount of circumstantial evidence in this case is sufficient to support appellant's conviction of first degree murder.

Sometimes in the strongest terms, both this court and the Supreme Court have used this zealousness theme to condemn the practice and to induce counsel to either forego such claims or to step aside and allow new counsel to adequately develop a record and present the claim along with the others preserved for appellate review. Commonwealth v. Willis, 492 Pa. 310, 424 A.2d 876 (1981); Commonwealth v. Glasco, 481 Pa. 490, 393 A.2d 11 (1978); Commonwealth v. Gardner, 480 Pa. 7, 389 A.2d 58 (1978); Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977); Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Massie, 294 Pa. Super. 115, 439 A.2d 777 (1982); Commonwealth v. Nance, 290 Pa. Super. 312, 434 A.2d 769 (1981); Commonwealth v. Beecher, 278 Pa. Super. 309, 420 A.2d 555 (1980); Commonwealth v. Lewis, 278 Pa. Super. 35, 419 A.2d 1342 (1980); Commonwealth v. Prowell, 249 Pa. Super. 435, 378 A.2d 374 (1977); Commonwealth v. Crowther, 241 Pa. Super. 446, 361 A.2d 861 (1976). Occasionally, this court has forcefully criticized counsel for raising such claims.

"our Supreme Court held that when appellant raising ineffectiveness of counsel is represented on appeal by that same counsel, we should entertain the claim only if reversible error is apparent on the record; if the claim is not apparent on the face of the record then we mustremand for appointment of new counsel not associated with the allegedly ineffective counsel. Commonwealthv. Glasco, 481 Pa. 490, 393 A.2d 11 (1978)." Commonwealth v. Roach, 268 Pa.Super. at 341, 408 A.2d at 496.