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decided: March 6, 1989.


Appeal from the Order of the Superior Court, sitting in Harrisburg, filed April 14, 1987 at No. 00608 HBG 84, affirming the Order of the Honorable John C. Dowling, Court of Common Pleas of Dauphin County filed July, 1983 vacating the death sentence entered by the jury on August 9, 1979 at No. 890 C.D. 1979. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. McDermott, J., files a dissenting opinion in which Larsen and Papadakos, JJ., join.

Author: Zappala

[ 521 Pa. Page 545]


The issue presented by this case is whether a death sentence which has been vacated because of insufficient evidence to support the aggravating circumstance of 42 Pa.C.S. § 9711(d)(9) should be reinstated when a defendant is again convicted of a crime for which his original conviction was overturned. We hold that a conviction used as an aggravating circumstance under § 9711(d)(9) which is valid at the time of the sentencing proceeding, but is later reversed and vacated, renders the jury's finding of that aggravating circumstance invalid. We hold further that a subsequent conviction for the same crime may not be used to revive the invalid aggravating circumstance.

On August 8, 1979, Appellee Nicholas Karabin, Jr. was found guilty by a jury of murder of the first degree relating to the death of Clarence Doolittle, a fellow inmate who was incarcerated at the time of his death in the Lackawanna County Jail. The Commonwealth sought the imposition of the death penalty and a sentencing hearing was conducted before the jury on the following day. Evidence was introduced by the Commonwealth to establish: (1) the defendant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9), and (2) the defendant had been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense, 42 Pa.C.S. § 9711(d)(10).

[ 521 Pa. Page 546]

The Commonwealth introduced the testimony of Captain Frank Roche of the Scranton Police Department, who identified Karabin as the individual charged in two indictments handed down by a Lackawanna County grand jury for the murder of Gerald Walsh on March 17, 1978 and aggravated assault for the shooting of Robert Christiano on April 6, 1978. Nicholas Hoffman, the Clerk of Courts of Dauphin County, identified certified copies of the official docket entries entered in both of those cases. The Commonwealth's Exhibit No. 3, a transcript from the trial of the murder charge, indicated that Karabin had been found guilty of first degree murder by a jury on December 14, 1978 for which he received a life sentence on March 27, 1979. Exhibit No. 4, a copy of the docket entries in the aggravated assault charge, indicated that Karabin had changed his plea and had plead guilty on January 17, 1979 to that charge. On March 27, 1979, he had been sentenced to undergo a five to ten year term of imprisonment. No other evidence of aggravating circumstances was introduced by the Commonwealth.

Karabin testified on his own behalf during the sentencing phase, describing to the jury how he was adversely affected by the disintegration of his marriage and his character prior to that time. Unclear as to whether the death penalty statute would permit cross-examination of witnesses during the sentencing phase, counsel for both the Commonwealth and Karabin decided not to conduct any cross-examination. Closing arguments were made by counsel.

The jury imposed the death sentence, unanimously finding one or more aggravating circumstances which outweighed any mitigating circumstances. The jury's verdict slip stated that the aggravating circumstances were (1) a history of felonies, and (2) already serving a life sentence.

Motions in arrest of judgment and for a new trial were filed by Karabin on August 15, 1979. Subsequently the presiding judge at the trial, Judge Wickersham, assumed the bench of the Superior Court and Judge John Dowling of

[ 521 Pa. Page 547]

    the Dauphin County Court of Common Pleas was eventually assigned to dispose of the post-trial motions.

On July 19, 1983, Judge Dowling entered an order vacating the death sentence and imposing a sentence of life imprisonment. Judge Dowling rejected the Appellee's arguments based on allegations of trial error, but concluded that the aggravating circumstance of a significant history of felony convictions involving the use or threat of violence to the person was invalid. The basis for his conclusion was that the Appellee's collateral conviction for aggravated assault underlying the jury's finding of that aggravating circumstance had been vacated.

The trial judge's statement of the events which gave rise to his conclusion and his reasoning in support thereof follows:

[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.

[ 521 Pa. Page 548]

However, not one word of this is mentioned before a jury, which is about to deliberate on whether to sentence the defendant to death or life imprisonment. We hasten to add that the trial Judge who, of course, was not the one who had presided over the guilty plea on the aggravated assault charge, was totally unaware of the true nature of the proceeding.

It should also be noted that subsequent to this trial, the Superior Court on November 20, 1981, vacated the order of the Court of Common Pleas of Dauphin County, which had denied the defendant's petition to withdraw his guilty plea, and remanded the case for a hearing on said motion. On December 30, 1981, the Court of Common Pleas approved Karabin's motion to withdraw his guilty plea. A trial was held March 22, 1982, and resulted in a deadlock jury. An appeal is currently pending before the Superior Court of Pennsylvania.

Can it be said, therefore, that as of August 8, 1979, the defendant had been "convicted" of aggravated assault? The prosecutor in ...

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