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decided: June 21, 1974.


Appeal from order of Court of Common Pleas of Dauphin County, Sept. T., 1968, No. 11, in case of Commonwealth of Pennsylvania v. Leroy Shirk.


Richard D. Walker, Public Defender, for appellant.

Wallace B. Eldridge, III, Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Concurring Opinion by Hoffman, J. Spaeth, J., joins in this concurring opinion.

Author: Van Der Voort

[ 228 Pa. Super. Page 357]

The instant appeal, after several procedural steps, both in the lower court, and in this court, is before us

[ 228 Pa. Super. Page 358]

    now as an appeal nunc pro tunc from the denial of a Petition filed under the Post Conviction Hearing Act. A hearing was held in the lower court on this Petition. The Appellant, Leroy Shirk, after a trial before a jury, was found guilty of the crime of aggravated robbery; he raises several issues on this appeal.

First, he alleges that he was denied the representation of effective counsel at trial. The record shows that at the beginning of his trial, the Appellant himself, before the jury was empaneled, moved for a continuance for the reason that he allegedly did not "have a lawyer present sufficiently acquainted with the case to handle it at this time". The trial judge then questioned Shirk's defense counsel about this matter. The attorney, a public defender, testified that he had sought to interview the appellant on the evening before the trial. Although he met with appellant, defense counsel told the court: ". . . there has been no communication developed between attorney and client. I believe there is a lack of confidence on the part of defendant in his attorney. Accordingly, I am unprepared to proceed with this case. The knowledge that I have obtained was knowledge that I have obtained on my own of an investigation of approximately a day and a half. I am unprepared to proceed with the defense in this case." Following this statement by defense counsel, the district attorney pointed out to the court that the same defense counsel had represented the appellant at the time of his arraignment, over a month before the date on which the trial began. The lower court denied the request for continuance.

During the hearing on appellant's PCHA Petition the matter of trial counsel's effectiveness was fully explored. Appellant testified that when his defense counsel attempted to discuss the alternative of pleading guilty, both at the time of the arraignment and during the period when counsel visited appellant to prepare

[ 228 Pa. Super. Page 359]

    for the trial, appellant told his attorney to "get lost". The attorney himself recalled that he felt unprepared for the trial on the basis that he could not establish any line of communication with the appellant. Defense counsel recalled that during his visit with Leroy Shirk prior to trial, the former attempted to explain all of the evidence and information which he had discovered during his own investigation of the case, but that the appellant would not talk to him about these matters. In fact, according to the defense counsel, the lack of communication between attorney and client continued throughout the trial. At the PCHA Hearing, the judge carefully questioned the defense attorney about the latter's efforts at the trial. He testified that he had handled the appellant's defense to the best of his knowledge and ability under the circumstance of the appellant's refusal to communicate with him.

The issue of the effectiveness of criminal defense counsel is one that has come before the courts on many occasions. In such situations, it is the duty of the appellate court to conduct an independent review of the record and to examine stewardship of the trial of the case in light of all of the alternatives available to defense counsel. Commonwealth v. Woody, 440 Pa. 569, 573, 271 A.2d 477, 479, 480 (1970); Commonwealth v. Berry, 440 Pa. 154, 157, 269 A.2d 921, 922, 923 (1970). In the instant case, where counsel himself testified to possible shortcomings in the handling of appellant's defense, we must, of course, give all of the matters in the record our most careful scrutiny. In general, we are guided by the concept that the absence of effective counsel means that the representation of the criminal defendant was so lacking in competence ...

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