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COMMONWEALTH PENNSYLVANIA v. ROBERT P. MCCABE (08/25/86)

submitted: August 25, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT P. MCCABE, APPELLANT



Appeal from the PCHA Order of April 3, 1986 in the Court of Common Pleas of Delaware County, Criminal Division, at No. 615, 616, 619 Sept. 1972.

COUNSEL

Mark Pinnie, Media, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, Newton Square, for Com., appellee.

Watkins, Hoffman and Hester, JJ.

Author: Hoffman

[ 359 Pa. Super. Page 568]

This is an appeal from the order of the court below denying appellant's petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551. Appellant contends that the lower court erred in denying his petition because (1) his trial counsel and counsel for his petition to set aside an illegal sentence were ineffective for failing to preserve for review the issue whether he was illegally sentenced for both the offense of assault with intent to kill and the offense of assault with intent to maim because the two convictions arose from a single criminal act and, thus, merge for sentencing purposes; and (2) he did not waive his right to post-conviction relief by filing his PCHA petition ten years after he was sentenced and six years after our Supreme Court affirmed the denial of his petition to set aside an illegal sentence. We agree and, accordingly, vacate the judgment of sentence for assault with intent to maim.

Appellant was found guilty of assault with intent to kill, assault with intent to maim, and conspiracy following a jury trial on June 19, 1973. On December 21, 1973, he was sentenced to three-and-one-half-to-seven years imprisonment for assault with intent to kill, two-and-one-half-to-five years imprisonment for assault with intent to maim, and one-to-two years imprisonment for conspiracy, the sentences to run consecutively. This Court affirmed the judgment of sentence. Commonwealth v. McCabe, 229 Pa. Superior Ct. 758, 325 A.2d 641 (1974), and our Supreme Court refused allocatur.

[ 359 Pa. Super. Page 569]

In 1975, appellant, represented by new counsel, filed a "Petition to Set Aside Unlawful Sentence" alleging that his sentences for both assault with intent to kill and assault with intent to maim were illegal because the offenses merged as a matter of law. The trial court denied the petition on the ground that appellant had waived the sentencing issue by failing to present it during post-trial motions. Lower Court Opinion, December 4, 1975 at 3. This Court affirmed with two judges dissenting. Commonwealth v. McCabe, 242 Pa. Superior Ct. 413, 364 A.2d 338 (1976) (HOFFMAN, J., dissenting joined by SPAETH, J.). Our Supreme Court affirmed without an opinion. 479 Pa. 273, 388 A.2d 323 (1978). On December 18, 1984, appellant filed the instant petition, which the trial court denied, and this appeal followed.

Appellant first contends that both of his former counsel were ineffective for failing to preserve for appeal the issue whether his sentences for assault with intent to kill and assault with intent to maim were illegal because the two offenses merge for sentencing purposes. We agree with appellant's contention. In evaluating the effectiveness of counsel's representation, we must first determine whether the underlying issue has arguable merit. Commonwealth v. Pierce, 345 Pa. Superior Ct. 324, 331, 498 A.2d 423, 425 (1985) (en banc), allocatur granted. If the claim has merit, the court must determine whether the course chosen by counsel had some reasonable basis aimed toward promoting the client's interests. Id. In addition, an appellant must show that counsel's ineffectiveness prejudiced his case. Id., 345 Pa. Superior Ct. at 334, 498 A.2d at 428.

Here, the underlying issue is whether the offenses merge for sentencing purposes. A person may not be twice placed in jeopardy for the same offense. Pa. Const. art. 1 § 10. The double jeopardy clause prohibits multiple punishment for a single offense. Commonwealth v. Williams, 344 Pa. Superior Ct. 108, 116, 496 A.2d 31, 36 (1985) (en banc) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)). When a single

[ 359 Pa. Super. Page 570]

    criminal act constitutes a violation of two distinct statutory provisions it is a single offense for double jeopardy purposes unless one provision requires proof of a fact that the other does not. Id. In order to determine whether there has been but one punishable offense, we must examine the elements of the offenses charged and determine whether proof of ...


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