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COMMONWEALTH v. BURTON (03/16/73)

decided: March 16, 1973.

COMMONWEALTH
v.
BURTON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1970, No. 498, in case of Commonwealth of Pennsylvania v. Larry Burton.

COUNSEL

Michael M. Baylson, with him Duane, Morris & Heckscher, for appellant.

Milton M. Stein, Assistant District Attorney, with him G. David Rosenblum and James T. Ranney, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Manderino.

Author: O'brien

[ 451 Pa. Page 13]

On January 24, 1972, appellant pled guilty to murder generally. The court heard testimony on the facts of the case and adjudicated appellant guilty of murder in the second degree.

Following the adjudication of January 24, 1972, sentence was deferred for a presentence report and neuropsychiatric examination. Prior to the sentence hearing, appellant was provided with a copy of the presentence and psychiatric reports. At the sentencing hearing, appellant was represented by counsel. The probation department investigator testified at the sentencing hearing

[ 451 Pa. Page 14]

    and was cross-examined by appellant's counsel. Appellant was sentenced to a term of not less than four nor more than fifteen years in a state prison.

On appeal, appellant first contends that he was entitled to an attorney during the course of his presentence interview by the probation department investigator, since it was a critical stage of the criminal process.

In Commonwealth v. Stukes, 435 Pa. 535, 541, 257 A.2d 828 (1969), we defined "a critical stage" as a "situation where legal rights may be preserved or lost, or where some factual or legal disadvantage may be suffered by the accused."

While the report may have some bearing on the sentence that is ultimately imposed, the investigator is not the decision-maker. The power to impose sentences is strictly within the province of the court. Thus, this case is distinguishable from such cases as Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805 (1968), and Com. ex rel. Remeriez v. Maroney, 415 Pa. 534, 204 A.2d 450 (1964). In those cases, we recognized that, since sentencing is the last opportunity for the defendant to present matters and circumstances which may lead to his freedom, he should have an attorney to aid him in mustering the facts and arguments on his behalf.

On the other hand, the presentence investigation is not a situation where legal rights must be preserved or lost. Instead, it is the first opportunity for the rehabilitative administration of the Commonwealth to interview the defendant, with a view to determining what particular types of treatment or guidance the defendant needs for rehabilitation. In order to be effective, an investigator must build a certain rapport with the ...


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