Appeal from Judgment of Sentence, Court of Common Pleas, Criminal Division, Potter County No. 83 of 1985
David B. Acker, Coudersport, for appellant.
Martha J. Duvall, Assistant District Attorney, Coudersport, for Com., appellee.
Cavanaugh, Tamilia and Hoffman, JJ. Hoffman, J. concurs in the result.
[ 381 Pa. Super. Page 412]
This case is before us upon the allowance of an appeal nunc pro tunc by the lower court. On appeal, we are asked to review the propriety of appellant's sentence.
Appellant pled guilty to escape and murder of the third degree on January 6, 1986. On March 5, 1986, he was sentenced to a term of incarceration of a minimum of nine and a maximum of eighteen years on the murder charge and a concurrent term of a minimum of three and a maximum of six months on the escape charge. Appellant filed a motion for reconsideration of sentence, and after a hearing on April 2, 1986, the motion was denied.
A notice of appeal from the judgment of sentence was filed on May 2, 1986. On January 20, 1987, this court
[ 381 Pa. Super. Page 413]
quashed the appeal as untimely since the appeal should have been taken within thirty days of March 5th. No 625 Pittsburgh 1986, per curiam. Thereafter on August 4, 1987, appellant executed a pro se petition under the Post Conviction Hearing Act (PCHA), and on August 19, 1987 the lower court appointed instant counsel to represent appellant. An amended PCHA petition was filed on December 15, 1987. By order filed on December 16, 1987, the lower court granted leave to appeal nunc pro tunc. Notice of appeal was filed on January 14, 1988, and the matter is now properly before us for review.
The first issue presented is, "Whether trial counsel was ineffective for failure to raise objection to improprieties in the sentencing and post trial hearings?" Appellant's argument on this issue is based upon the alleged interjection of religion in the sentencing proceeding by the trial court, Judge Harold B. Fink. Appellant maintains that trial counsel rendered ineffective assistance when he did not object to Judge Fink's references to religion and to his own personal religious beliefs.
The standard by which we determine whether counsel has acted in a constitutionally effective manner is first, is the claim of arguable merit; second, is there some reasonable basis designed to effectuate the client's interest; and third, has the challenged conduct prejudiced the client. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Absent any of these factors, a claim of ineffectiveness dues not warrant the granting of relief.
We have thoroughly reviewed the record in this case and find that although there is arguable merit to appellant's claim, there is a reasonable basis for counsel's action designed to further appellant's best interests and there is no ...