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COMMONWEALTH v. KRENKOWITZ (11/16/72)

SUPERIOR COURT OF PENNSYLVANIA


decided: November 16, 1972.

COMMONWEALTH
v.
KRENKOWITZ, APPELLANT

Appeal from orders of Court of Common Pleas of Northampton County, June T., 1967, No. 127 in case of Commonwealth of Pennsylvania v. Walter P. Krenkowitz.

COUNSEL

Philip D. Lauer, for appellant.

Allan B. Goodman, Assistant District Attorney, and Charles H. Spaziani, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone and Packel, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 223 Pa. Super. Page 5]

Appellant contends that his 1967 sentence should be reconsidered because the sentencing judge relied upon a 1963 conviction, which has since been reversed.

"For almost three decades in Pennsylvania it has been a well established and recognized rule of law that evidence of prior offenses committed by the defendant . . . is admissible . . . solely for the purpose of enabling the jury to decide what penalty should be imposed on the defendant." Commonwealth v. Thompson, 389 Pa. 382, 399, 133 A.2d 207 (1957), cert. den. 355 U.S. 849; Commonwealth ex rel. Sullivan v. Ashe, 325 Pa. 305, 188 A. 841 (1937), aff'd 302 U.S. 51; Commonwealth ex rel. Gouch v. Myers, 196 Pa. Superior Ct. 285, 288, 175 A.2d 158 (1961); Commonwealth ex rel. Wildrick v. Myers, 199 Pa. Superior Ct. 85, 88, 184 A.2d 158 (1962). Where a defendant is sentenced, however, on the basis of erroneous assumptions with respect to his

[ 223 Pa. Super. Page 6]

    criminal record, the defendant may be denied due process of law. Townsend v. Burke, 334 U.S. 736 (1948).*fn1

In addition to the 1963 conviction, appellant had nineteen other convictions when he was sentenced in 1967. The appellant's extensive record precludes a finding that the sentence imposed herein was substantially predicated on the 1963 conviction. This is clearly a case of harmless error. United States ex rel. Cottrell v. Rundle, 299 F. Supp. 1028 (1969).*fn2

For the aforementioned reasons, the lower court decision is affirmed.

Disposition

Orders affirmed.


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