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COMMONWEALTH PENNSYLVANIA v. JOHN FREDERICK NOLE (04/17/75)

decided: April 17, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN FREDERICK NOLE, APPELLANT (TWO CASES)



COUNSEL

Nelson Romisher, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., James Garrett, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty., for Law, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Manderino

[ 461 Pa. Page 317]

OPINION OF THE COURT

Appellant, John Frederick Nole, was convicted by a jury on May 21, 1970, of carrying a concealed deadly weapon, aggravated robbery, burglary and murder in the first degree. Post-verdict motions were denied and the appellant was sentenced to a term of life imprisonment. On direct appeal, this Court affirmed the judgments of sentence. Commonwealth v. Nole, 448 Pa. 62, 292 A.2d 331 (1972). Appellant subsequently filed a petition for relief under the Post Conviction Hearing Act. An evidentiary hearing was held and the relief requested was denied on November 1, 1973. Appellant now appeals to this Court.

In the late afternoon of February 22, 1969, appellant, then seventeen years of age, and two other youths entered a neighborhood candy store owned and operated by eighty-one year old Joseph Shayka and his wife, Helen Shayka. One of the appellant's companions held a knife to the husband's neck. Appellant pointed a gun at the husband; struck him several times in the stomach with his fists and the gun; and demanded money. The cash register was then rifled and the youths ran out. The husband collapsed and died shortly thereafter of a massive internal hemorrhage resulting from the rupture of his abdominal aorta. At trial, the wife, an eyewitness, described the robbery in detail and identified appellant as her husband's assailant. The prosecution introduced an inculpatory statement, signed by the appellant, which reiterated the wife's description of the crime. Two youths, who were not involved in the robbery, testified

[ 461 Pa. Page 318]

    that appellant had shown them his gun and had attempted to recruit them as participants shortly before the robbery occurred. The gun which was used during the robbery was produced at trial with the explanation that it had been seized by police pursuant to a lawful search of appellant's home. In his direct appeal, appellant unsuccessfully challenged his certification for trial as an adult, and the sufficiency of the evidence to prove that the blows which appellant had administered to the victim were the cause of death.

Appellant raises several issues in this appeal. He first contends that he was denied the effective assistance of counsel both at trial and on direct appeal. In support of this claim appellant alleges that (1) counsel failed to object to the trial court's charge in which the court expressed its opinion as to the guilt or innocence of the appellant, (2) counsel failed to assert on direct appeal that the prosecution systematically excluded members of the black race from serving as jurors, thus depriving appellant of a fair and impartial trial, and (3) counsel also failed on direct appeal to challenge the admission into evidence at trial of an allegedly involuntary confession. The record reveals that appellant was represented by two court appointed attorneys both at trial and on direct appeal.

In determining the effectiveness of appellant's counsel "[o]ur task . . . encompasses both an independent review of the record, . . . and an examination of counsel's stewardship of the now challenged proceedings in light of the available alternatives." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Ineffective assistance of counsel may only be found if "'[t]he defense actually tendered was so insubstantial in relation to those not offered as to cast doubt upon the hypothesis that trial counsel made a deliberate informed choice.' We cannot emphasize strongly enough, however, that our inquiry

[ 461 Pa. Page 319]

    ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's ...


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