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COMMONWEALTH v. COOK (09/23/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: September 23, 1974.

COMMONWEALTH
v.
COOK, APPELLANT

Appeal 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.

COUNSEL

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.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J.

Author: Van Der Voort

[ 230 Pa. Super. Page 284]

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. ยง 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.

Disposition

Judgment of sentence affirmed.

19740923

© 1998 VersusLaw Inc.



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