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COMMONWEALTH v. SHOEMAKER (12/11/73)

decided: December 11, 1973.

COMMONWEALTH
v.
SHOEMAKER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 1936 of 1971, in case of Commonwealth of Pennsylvania v. Roger Shoemaker.

COUNSEL

Richard R. Fink, Assistant Public Defender, for appellant.

Alan M. Rubenstein, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Spaeth, J. Spaulding, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 226 Pa. Super. Page 204]

Appellant contends that his sentence should be set aside because the pre-sentence report showed that he

[ 226 Pa. Super. Page 205]

    had been arrested a number of times but did not state what disposition had been made of the arrests.*fn1

On January 19, 1973, appellant was adjudged guilty of burglary and larceny of a window fan from a storage bin in an apartment building. The trial was before a judge sitting without a jury, and after the verdict was announced, appellant, through counsel, offered to stand for sentencing that day.*fn2 A rather lengthy interrogation by the court ensued. Appellant was asked about his prior arrests (the testimony regarding these has been summarized in the first footnote, supra), and also about his age and birthplace, marriage, children, employment, and military service. In the course of

[ 226 Pa. Super. Page 206]

    this interrogation appellant told the judge that he was then in jail on another burglary charge (he had been released on bail on the burglary charge for which the judge had just tried him). He also said that he had had problems with various drugs (barbiturates, marijuana, LSD, "speed", heroin, "the whole bit"). After appellant had referred to the apparent progress he was making in various prison programs ("a drug group . . ., and I'm in the dormitory"), the following took place.

"The Court: Do you have any recommendation, Mr. King [the Deputy District Attorney]? Mr. King: Your Honor, may I have one moment? The Court: Suppose we defer sentence? Mr. King: Your Honor, I want to consult with the prosecutor [the police officer]. He agrees with me. Although we have no definite recommendations as to time, we feel the defendant should not be permitted to be let out on the Street. The Court: Should not be allowed? Mr. King: Should not be set free on probation; that he should serve some sort of time. The Court: I am going to defer sentence and learn a little more about the man. I think there is probably a good bit more I can learn about him. I will have a pre-sentence investigation report done. It may help or it may hurt you, Mr. Shoemaker. Defendant Shoemaker: Thank you, sir. The Court: It will help me, because I do not like what I see on this paper. But, I do want to see people involved in drugs, if that is the basis of your problem, to get squared away. I do not know if that is the case here; it is hard for me to tell."

On March 7, 1973, appellant was returned to court for sentencing. He again testified as to his record*fn3 and

[ 226 Pa. Super. Page 207]

    described the apparent progress he was making in rehabilitation programs, such as drug therapy and completion of his high school credits. The judge then asked for sentencing recommendations: "Mr. Fink [defense counsel]: I would just submit, as Mr. Shoemaker's attorney, that the man has never been put on probation . . . I think he might be a good candidate for probation. He has set up a program in the event he's released. The Court: He is not a good candidate for probation. He is a threat to society. Have you seen this record? Mr. Fink: I have not."

The judge then produced part of the pre-sentence report: an FBI arrest record listing fourteen arrests, nine of which were after the arrest for the charges on which appellant was about to be sentenced. Defense counsel pointed out to the court that the report did not ...


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