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COMMONWEALTH PENNSYLVANIA v. GEORGE CARROLL (08/11/86)

filed: August 11, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE CARROLL, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, at No. 1753 C.D. 1980.

COUNSEL

Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.

Katherine E. Holtzinger, Deputy District Attorney, Harrisburg, for Com., appellee.

Del Sole, Popovich and Roberts, JJ.

Author: Del Sole

[ 355 Pa. Super. Page 571]

This appeal is from a Judgment of Sentence of 2 1/2 -- 5 years imprisonment, a fine of $300.00 plus the costs of prosecution imposed based upon Appellant's conviction of possession with intent to deliver a controlled substance (heroin).

Of the eight issues raised by Appellant, this court, 482 A.2d 1292, had previously considered one and found it to be meritorious. The Commonwealth appealed to the Supreme Court of Pennsylvania which reversed this court's order and remanded the case back to this court for consideration of Appellant's remaining claims, 507 A.2d 819. Since we find

[ 355 Pa. Super. Page 572]

    another of Appellant's claims to have merit, we address that claim herein and we again reverse Appellant's Judgment of Sentence.*fn1

Appellant maintains his trial counsel was ineffective for failing to preserve for appeal an issue regarding the propriety of the trial court's admission of a search warrant into evidence.

In examining Appellant's ineffectiveness claim we must first determine whether the underlying claim has merit. Second, we must inquire whether counsel's handling of the matter at issue had some reasonable basis designed to effectuate the client's interests. Counsel is not ineffective unless there was no reasonable basis for the action, nor is counsel ineffective for not taking baseless or meritless action. Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984). The test for competency is not whether other alternatives are more reasonable, employing a hindsight evaluation of the record, but whether counsel's assessment of the case and his advice were reasonable. Commonwealth v. Larkins, 340 Pa. Super. 56, 489 A.2d 837 (1985). In addition to the above, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to the defendant so as to deprive him of a fair trial. Commonwealth v. Pierce, 345 Pa. Super. 324, 498 A.2d 423 (1985). At all times through the process, the law presumes counsel's stewardship is effective and the burden of proving ineffectiveness of counsel rests with the appellant. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984).

The ineffectiveness argument raised by Appellant is based upon counsel's failure to preserve for appeal a question concerning the court's admission of hearsay statements. These statements were contained in the probable ...


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