Commonwealth v. Shirk
323 A.2d 99
Pa. Super. Ct.
1974
Check Treatment

*1 Hе done it further stat- lie bad sorry past. when wrong that he the difference between ed knew on all of above, lie. Based wrong felt it was is, the third requirement, must conclude testify truthfully, of a child’s consciousness v. Commonwealth in the instant case. See satisfied Fox, Troy, Commonwealth Furman, A. 252 (1922); Pa. v. Logan, A. 1089 Commonwealth (1905); Commonwealth (1962); 635,184 Ct. Superior Ct. A. 2d Allabaugh, affirmed. hereby sentence Judgment v. Shirk, Appellant. *2 Submitted March 1974. Before J., P. Watkins, Jacobs, Hoffman, Cercone, Price, Van der Voort, JJ. Sрaeth,

Richard D. Walker, Public Defender, for appellant. B. III, Wallace Eldridge, Assistant ‍‌​‌‌​​‌​‌‌​‌‌​​​​‌‌​‌‌​‌‌‌‌​​​‌‌​‌​‌​​‌‌‌​‌‌​​​‌‍District Attor S. ney, LeRoy Zimmerman, District Attorney, Commonwealth, appellee.

Opinion by Van der Voort, J., June 1974: The instant after several appeal, рrocedural steps, both lower court, and court, before us pro appeal from the denial tunc nunc now Hearing Act. Post Conviction filed under the Petition on this Petition. held in the lower court A jury, Appellant, before a after a trial Shirk, robbery; aggravated guilty of crime of found appeal. on this he raises issues several representa- alleges he was denied he First, trial. The record shows at tion effective counsel be- beginning himself, jury empaneled, for a continuance moved fore allegedly a law- not “have that he did for the reason acquainted yer present sufficiently case with the judge questioned then The trial it at this time”. handle The attor- matter. about this Shirk’s defense сounsel sought ney, public testified had defender, evening appellant on before the trial. interview the Although appellant, counsel told he met with *3 de- . . been no communication the court: “. there has attorney veloped I there and client. believe between part on of lack of confidence the defendant is a attorney. Accordingly, unprepared proceed I am to knowledge I The obtained this case. with my knowledge I on of hаve obtained own investigation approximately day I and a am of half. unprepared proceed the case.” to with defense Following dis- statement defense the counsel, attorney pointed out to the court thаt the same trict represented had the arraignment, a month before time of over the date began. The trial lower court denied the on which the request for continuance. appellant’s

During hearing on PCHA Petition fully matter of trial counsel’s effectiveness ex- plored. testified that when his defense coun- attempted pleading to the alternative discuss of sel arraignment guilty, during time of the both at the period prepare visited when counsel to attоrney “get told to lost”. Ms trial, attorney unprepared recalled that he felt The Mmself for the trial the basis that he could not establish any appellant. line of Defense communication with the during counsel recalled that visitMs priоr attempted explain of to the former to all the evidence and information he had which discovered during investigation Ms of the own but that appellant would not talk Mm about these matters. according In of the defense the lack fact, counsel, attorney communication between client continued throughout judge Hearing, ‍‌​‌‌​​‌​‌‌​‌‌​​​​‌‌​‌‌​‌‌‌‌​​​‌‌​‌​‌​​‌‌‌​‌‌​​​‌‍the trial. At the PCHA carefully questioned attorney the defense about the lat- ter’s efforts at the trial. He testified that he had han- appellant’s knowledge dled defense to the of best Ms ability under the circumstance of the refusal to him. communicate with of issue effectiveness criminal defense many counsel is one that before has come courts ap- In occasions. pellate such it is the situations, of the independent court to conduct an review stewardship record and to examine of the trial of the case in all the alternatives available to de- Woody, fense counsel. 440 Pa. (1970); 271 A. 2d 477, 479, Berry, 921, 922, (1970). In the instant where counsel himself tes- possible shortcomings handling tified to ap- in pellant’s give defense, must, course, all of the scrutiny. matters in the record our most careful In *4 general, guided by concept we аre that the absence of representation effective counsel means that the of lacking the criminal competence defendant was so appellate it becomes court’s to correct the fundаmental unfairness inherent in that situation. Irby, v. Commonwealth Pa. A. 2d 738, We must search to see if counsel’s actions and reasonable basis, had some and decisions at trial of balance favor tips rule,that in mind the keep such reason if, of and when, a effective counsel finding Woody, supra, v. found. Commonwealth able basis is 271 A. 2d at Commonwealth 480; 440 Pa. at 575, 2d at 923. 440 Pa. at Berry, supra, of the trial record complete have examined the We the testimony developed of the instаnt and are convinced that PCHA Hearing To the of counsel. not denied effective assistance the total record reveals contrary, him an expert, who lawyer provided represented by re- despite appеllant’s able defense vigorous and in fur- communication fusal to engage meaningful of of disregard own case. Moreover, therance his hostility him, toward rebuffs stated Commonwealth wit- cross-examined thoroughly counsel objections, and reasonable raised nesses, appropriate to the the case points charge submitted argued has It is jury. also noteworthy instance any specific directed court’s attention counsel in the stewardship actiоn improper that his own merely argues general attorney to get court-appointed failure with his along the latter ineffective. made defendant not have that an does indigent It is clear any to the appointment Johnsоn, See may choose. 2d 805 cases cited therein. (1968) represented counsel -has an indigent appointed When in a reasonable and man- competent criminal defendant on the rely cannot and will not defendant’s own nеr, attorney, with his dealing support recalcitrance counsel. Appellant’s arguments ineffective finding merit. regard in this noted that It is also raises ques- shortness time as affect- preparation of possible tion *5 his to effectivе counsel. It was earlier dis ing that when Shirk met trial at cussed counsel over a month before Shirk arraignment, communicate refused to attor meaningfully before just When visited the ney. him the trial told defense, again to prepare the PCHA to lost”. At Shirk declared “get Hearing, more if time had existed trial preparation, other witnesses he might been called. When asked to other identify ‍‌​‌‌​​‌​‌‌​‌‌​​​​‌‌​‌‌​‌‌‌‌​​​‌‌​‌​‌​​‌‌‌​‌‌​​​‌‍possible however, witnesses, Shirk could name none. under general We operate mere rule that of time of itself shortness does not es tablish that assistance of counsel was ineffective. Com monwealth v. Woody, Commonwealth v. supra; Berry, ex rel. Johnson v. Russell, A. With (1968). recognition that rule matters discussed above, find no validity additional argument shortness of time concerning alleged preparation counsel.

Next, appellant, citing Coleman v. Alabama, 399 90 S. Ct. L. U.S. Ed. 2d claims (1970), that his conviction should be reversed he because afforded a not The рreliminary re- hearing. records veal that a was held hearing this matter 7, 1968. One August co-defendant appeared at this another hearing, waived preliminary hearing, third co-defendant was listed as a simply fugitive. confined in Franklin appаrently County Prison for an unrelated offense date and was also listed as a fugitive.

The decision recent case Commonwealth v. Brabham, Pa. Superior Ct. A. 2d 824 (1973) previous overruled law on the preliminary which had been requirement, enunciated in Czarnecki, 221 Pa. Superior Ct. 303, 304, 292 2d 422 (1972) Commonwealth v. O’Bri- 124 A. 2d 666 Ct. 382, en, supra, prior As the instant case arose supra, governed prior it is Czarnecki, even re case.1 ‍‌​‌‌​​‌​‌‌​‌‌​​​​‌‌​‌‌​‌‌‌‌​​​‌‌​‌​‌​​‌‌‌​‌‌​​​‌‍it was Hence, the O’Brien quired hear be afforded ing of his own confined as a result 1968while was *6 County jail. that in Franklin It is nоted the conduct, misplaced, since on is the reliance Coleman the not in that a Court did hold that case merely required, one entitled is preliminary hearing Moreover, if held. to counsel is Supreme our a 1970 Ooleman, Court has held own given application. not to be retroactive decision, was A. 2d See Commonwealth v. 440 Pa. 269 James, 205, analysis (1970). Lastly, rec of the after an whole in no un ord the instant can find fundamental we case, appellant fairnеss to the denial of a O’Brien, in this case. See Commonwealth v. pertinent part, Commonwealth v. McClos cf., key, (1971), cert. 277 A. 2d 117, 140, 764, L. Ed. 2d 552 denied, U.S. 92 S.Ct. (1971). may appellant raises other claims several which

be dealt with without extended discussion. challenges sufficiency in our the evidence and sufficiency accept determination we must true together all of with all reasonable infer- evidence, upon jury prop- ences which the therefrom, could have erly based its verdict. See Clark, 311 A. 2d In case, opinion by It is noted the writer of this is troubled majority Brabham, supra, of this Court finds reasoning by dissenting judges merit in the relied on in that However, concerning ap ease. of the discussion above plicability of the O’Brien rule tо this it is felt that the instant appeal present appropriate does not an vehicle for the reconsidera tion of and the issues decided therein. in the of a directly implicated robbery one of in station his co-fеlons who was gasoline crime. The jury justified same volved this evidence to the conviction accepting support ap Another argument raised deals pellant. denial of alleged challenge which grand jurors his case. аrray passed upon Since motions raised pretrial were this point, additionally, since entered a plea trial on guilty proceeded the merits find no basis for reversal this issue. See Commonwealth v. Bruno, Pa. Superior Ct. 541, 434, 437, cert. (1964), denied, 379 U.S. 965.

In of our view and the analysis conclusions reached discussed relief above, prayed ‍‌​‌‌​​‌​‌‌​‌‌​​​​‌‌​‌‌​‌‌‌‌​​​‌‌​‌​‌​​‌‌‌​‌‌​​​‌‍is denied and the order of the Court of Common Pleas of Dauphin County affirmed. *7 by

Concurring Opinion J.: Hoffman, I join While in Majority restrictive in holding the instаnt I must voice case, my disapprov- al in the broad dicta in the appearing Majority Opin- ion which seeks to vitiate our in Common- wealth v. Brabham, 225 Pa. Ct. Superior 331, 309 A. 2d 824 (1973).

Brabham, which was decided a full a by by Court 4-3 decision and in which allocаtur denied our Supreme established Court, a to a right preliminary in all hearing but a select number “recognized ex- ceptions”.1 It is important emphasize the Ma- in jority Brabham Opinion derived said not from right, constitutional from sources, mandatory clear Pa. R. language Crim. P. 119. exceptions McCloskey, See noted 227 A. 2d 764 a the instant “fugitive”,

Since is to our decision which arose prior enunciated Common- the “exception” controlled O’Brien, Ct. wealth be that Brabham may disputed It 2d 666 (1956). however, only. Majority, effect has prospective merits of the analyzing without further, goes that “after an under states present law, instant appeal can record in the of the whole instant analysis unfairness to the appellant find fundamental case.” In the a this denial the above-quoted limited context this appeal, portion correct; however, is Majority Opinion from mandate tantamount a procedural Brabham enunciates all a to a right а rule that defendants have se per unless this Commonwealth seeking to determine process waived, weighing or associated with denial “prejudice” “fairness” expressly prohibited. joins J., concurring opinion. Spaeth, Johnson, Appellant.