Appeal from the Order of July 19, 1983 in the Court of Common Pleas of Dauphin County Criminal Division, at No. 890 C.D. 1979.
Ernest D. Preate, Jr., District Attorney, Scranton, for Com., appellant.
Todd J. O'Malley and George V. Lynett, Scranton, for appellee.
Cirillo, President Judge, and Cavanaugh and Hoffman, JJ.
[ 362 Pa. Super. Page 301]
This is an appeal from the sentencing court's order reducing appellee's sentence from a penalty of death to one of life imprisonment. The Commonwealth contends that the lower court erred in setting aside the death penalty because the jury properly determined that the aggravating circumstances outweighed any mitigating circumstances. We disagree and, accordingly, affirm the lower court's order.
On August 8, 1979, appellee, Nicholas Karabin was found guilty by a jury of various crimes including murder of the first degree in connection with the death of Mr. Clarence Doolittle. The day after the guilty verdict was handed down, the trial court conducted a sentencing hearing before the jury pursuant to 42 Pa.C.S.A. § 9711(a)(1). At that hearing, the Commonwealth introduced the following evidence of aggravating circumstances: that the defendant was already serving a life sentence in connection with his conviction for the first degree murder of Gerald Walsh, and that the defendant had been convicted of aggravated assault for the shooting of Robert Christiano. After deliberation, the jury sentenced the defendant to death. The jury's verdict slip read as follows:
We, the jury, unanimously sentence the defendant to death . . . .
[ 362 Pa. Super. Page 302]
We, the jury, have found unanimously one or more aggravating circumstances which outweigh any mitigating circumstances. The aggravating circumstances are, one, a history of felonies, two, already serving a life sentence.
On July 19, 1983, the trial court set aside the penalty of death, and imposed a sentence of life imprisonment. We quote the lower court at length because it best expressed its reasoning and the circumstances surrounding the imposition of its sentence.
[W]e have the very disturbing situation of the introduction of the "conviction" for aggravated assault, amplified by the indictment as involving the shooting in the neck of one Robert Christiano. The clerk of Court testified from a certified copy of the docket entry that on January 17, 1979, the defendant in open court pled guilty; and on March 27, 1979, was sentenced to undergo imprisonment for not more than ten, nor less than five years. There was no objection to this testimony and no cross-examination concerning it.
This is extraordinary and almost incredible, when one examines what actually occurred as evidenced by the complete docket entries. Karabin did, in fact, plead guilty on January 17, 1979, and was sentenced on March 27, 1979; yet on the same day he was sentenced, a petition for allowance to withdraw his guilty plea and substitute a plea of not guilty was filed. On April 9, 1979, the Commonwealth answered the petition and on April 25, 1979, the trial court denied the petition. This denial was appealed to the Superior Court on May 16, 1979. All of these events transpired before the instant trial and all were obviously within knowledge of the defendant's trial counsel and the prosecuting attorney. However, not one word of this is mentioned before a jury, which is about to ...