Opinion
March 28, 1974.
September 23, 1974.
Criminal Law — Practice — Alleged ineffective assistance of counsel — Lack of evidentiary hearing — Post Conviction Hearing Act of January 25, 1966, P.L. 1580.
1. In the absence of clear and irrefutable on-the-record proof that counsel was ineffective, an appellate court cannot decide an ineffective assistance of counsel claim on direct appeal.
2. In such circumstances, an appellate court will wait until an evidentiary hearing has been held upon an appropriate request for relief under the Post Conviction Hearing Act.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 1593, Oct. T., 1973, from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1971, No. 1305, in case of Commonwealth of Pennsylvania v. Henry Cook. Judgment of sentence affirmed.
Indictment charging defendant with carrying a concealed deadly weapon, and attempt with intent to kill. Before SALUS, JR., J., without a jury.
Finding of guilty of attempt with intent to kill and judgment of sentence entered thereon. Defendant appealed.
Daniel H. Greene, for appellant. James J. Wilson, Mark Sendrow, David Richman, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Submitted March 28, 1974.
This is a direct appeal following conviction and sentencing on charges of attempt to kill. The only issue raised by the appellant is alleged lack of effective trial counsel. In the absence of clear and irrefutable on-the-record proof that counsel was ineffective, we cannot decide an ineffective assistance of counsel claim on direct appeal. Rather in such circumstances, we will wait until an evidentiary hearing has been held upon an appropriate request for relief under the Post Conviction Hearing Act (Act of January 25, 1966, P.L. (1965) 1580, 19 P. S. § 1180-1 et seq.) See Commonwealth v. Kennedy, 229 Pa. Super. 189, 323 A.2d 384 (1974) and cases cited therein; Commonwealth v. Benjamin, 219 Pa. Super. 344, 280 A.2d 625 (1971) (footnote 1.)
We find the record to be inconclusive in respect to the claims raised, and therefore uphold the conviction without prejudice to the appellant to seek appropriate relief under the Post Conviction Hearing Act on his effective counsel claims. See Commonwealth v. Porter, 220 Pa. Super. 222, 281 A.2d 701 (1971) (Concurring Opinion of Judge HOFFMAN).
Affirmed.