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COMMONWEALTH PENNSYLVANIA v. ARTHUR OGNIBENE (04/06/87)

submitted: April 6, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
ARTHUR OGNIBENE, APPELLANT



Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County at No. 008406249.

COUNSEL

Stanton D. Levenson, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Kelly, Popovich and Watkins, JJ.

Author: Popovich

[ 364 Pa. Super. Page 166]

This is an appeal from an order denying a petition under the Post Conviction Hearing Act (PCHA). We affirm.

In 1984, appellant, Arthur Ognibene, entered a plea of guilty to a charge of theft by unlawful taking or disposition, 18 Pa.C.S.A. ยง 3921 and was subsequently sentenced to a term of 7 years probation and ordered to pay $8000 restitution. In 1986, appellant filed the instant petition requesting he be permitted to withdraw his guilty plea because counsel had rendered ineffective assistance.

[ 364 Pa. Super. Page 167]

Appellant raises two issues in his appeal to this court: 1) trial counsel was ineffective for failing to file a motion to supress; and, 2) trial counsel was ineffective for failing to file a motion to dismiss.

It is axiomatic that the standard of review in determining whether counsel rendered ineffective assistance necessitates an initial inquiry into the underlying claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Only if an underlying claim is found to be of arguable merit, do we proceed to determine whether there existed a reasonable basis for counsel's actions designed to protect the client's interests. Commonwealth ex. rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

We agree with the PCHA judge's determination that under existing case law, neither claim is of arguable merit. The factual background is as follows. Appellant was employed by the Aloe Coal Company when company officials discovered equipment was being stolen. Appellant was related to the Aloe family, and in August, 1983, appellant was presented with a letter of resignation and told that if he signed it and helped with an internal investigation, he would be paid the balance of his 1983 salary and health benefits. Appellant did so. In September, 1983, at a meeting with the Aloe Brothers and the company's attorney, appellant was informed he would not receive the money or benefits unless he made a full statement. He was told the statement was to be stenographically recorded but would not be used to prosecute him. Appellant did not receive the money nor benefits, and the statement was turned over to the police.

Appellant now contends trial counsel was ineffective for failing to file a motion to suppress this confession. Appellant argues that he was never advised of his Miranda rights, Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he was induced by promises that the statement would not be used against him. However, as conceded by ...


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