Commonwealth v. Cook

230 Pa. Superior Ct. 283 (1974)

Commonwealth v. Cook, Appellant.

Superior Court of Pennsylvania.

Submitted March 28, 1974.

September 23, 1974.

Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN DER VOORT, and SPAETH, JJ.

Daniel H. Greene, for appellant.

*284 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.

OPINION BY VAN der VOORT, J., September 23, 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. Superior Ct. 189, 323 A.2d 384 (1974) and cases cited therein; Commonwealth v. Benjamin, 219 Pa. Superior Ct. 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. Superior Ct. 222, 281 A.2d 701 (1971) (Concurring Opinion of Judge HOFFMAN).

Affirmed.