No. 92 March Term, 1979, Appeal from the Order of the Court of Common Pleas of Dauphin County, Criminal Division, at No. 1046 of 1978
Todd J. O'Malley, Scranton, for appellant.
Ernest Preate, District Attorney, Scranton, for Commonwealth, appellee.
Brosky, Hoffman and Cirillo, JJ.*fn* Cirillo, J., files dissenting opinion.
[ 292 Pa. Super. Page 375]
On January 17, 1979, appellant, Nicholas Karabin, pleaded guilty to a charge of aggravated assault. On March 27, 1979, a hearing was held at which Karabin was sentenced, however, prior to his sentencing, he presented to the court a request to withdraw his plea. Saying that the District Attorney should have an opportunity to review the motion, the trial court postponed ruling on it until a future date. The court did, however, proceed with sentencing
[ 292 Pa. Super. Page 376]
imposing upon appellant a sentence of not less than five years nor more than ten years imprisonment. Trial counsel did not object to the lower court's sentencing procedure. Therefore, Karabin has waived any claim that the procedure followed at the hearing was improper. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). On appeal, however, appellant claims that trial counsel was ineffective in failing to object to the trial court's actions at the sentencing hearing. Appellant is represented by new counsel and the issue is properly before us. We agree that trial counsel was ineffective and therefore reverse the order of the trial court and remand to that court for a hearing on Karabin's motion to withdraw the guilty plea.
On April 6, 1979, Robert Christiano was shot in the back of his neck. Christiano subsequently identified Karabin as the man who shot him. Karabin was also identified as the assailant by a witness to the incident who saw Karabin run across a street very shortly after he heard the sound of a gun shot emanate from that street.
At trial, the testimony given at another trial by Leith Howell, Karabin's paramour, was stipulated by the Commonwealth and by Karabin and incorporated by reference into the trial. She stated that she had lived with Karabin at various times and that he had said to her that he planned to commit a series of slayings including that of taking his own life based upon the theory that such a pattern of action would withdraw him from suspicion as to the murder of his wife. Ms. Howell also stated that on the date of incident involved in the instant case that she had travelled with Karabin in his car to a location a few blocks from the location at which the assault occurred. She claims also that Karabin told her at some later time, after she had left the car and subsequently returned, that he had shot a person.
The standard by which we review ineffectiveness of counsel cases is well established. First, we must determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Sherard, 483 Pa. 183, 394 A.2d 971 (1978); Commonwealth v. Jennings, 285 Pa. Super. 295, 427 A.2d 231
[ 292 Pa. Super. Page 377]
(1981). If the issue is found to have arguable merit then we must determine if the trial counsel's actions had some reasonable basis. If any reasonable basis exists, counsel cannot be found to have been ineffective. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); ...