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COMMONWEALTH v. STRAW (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
STRAW, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Nov. T., 1974, No. 5006, in case of Commonwealth of Pennsylvania v. David A. Straw.

COUNSEL

Donald D. Rossetti and Gary B. Zimmerman, for appellant.

Louis R. Paulick and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Spaeth, J.

Author: Jacobs

[ 238 Pa. Super. Page 536]

This appeal follows appellant's conviction, on December 4, 1974, of possession of a prohibited offensive weapon, 18 Pa. C.S. § 908,*fn1 following a jury trial held before Judge Wessel.

Appellant was tried on a six-count indictment. He was acquitted on charges of failure to stop at the scene of an accident, failure to identify himself at the scene of an accident, failure to render assistance at the scene of an accident, simple assault, and resisting arrest. He was convicted on the remaining charge, possession of a prohibited offensive weapon (a blackjack), and was thereafter sentenced, on January 10, 1975, to thirty days in jail and to pay a fine of $100.00. No post trial motions were filed. The facts of the case are set out in an "Agreed Statement of Facts", Appellant's brief at 3a-6a. In sum, appellant was charged with having passed an unmarked Monroeville Police car at a high rate of speed, and, upon being chased, to have attempted to elude the unmarked car and two marked cars, resulting in his running into one of the marked cars. The blackjack was observed in the front of appellant's car after he was subdued. Appellant claimed he was unaware of the sirens employed or the identity of his pursuers until just before he made contact with a marked car.

Appellant's only argument here is that the sentence imposed was excessive under the circumstances of this

[ 238 Pa. Super. Page 537]

    case and that the sentence should be vacated and the case remanded for resentencing. He claims that the lower court failed to consider his background and other characteristics in imposing sentence, that the lower court should not have considered the charges of which he was acquitted in imposing sentence, and that he was punished on the basis of the charges of which he was acquitted.

We find no merit in appellant's contentions. The crime of which he was convicted is a misdemeanor of the first degree, allowing imposition of a fine of $10,000.00, 18 Pa. C.S. § 1101(3),*fn2 and imprisonment of up to five years, 18 Pa. C.S. § 1104(1).*fn3 In direct contrast to the severity of the permissible maximums, the sentence imposed was that he pay a fine of $100.00 and be imprisoned for thirty days.

It has long been established that the sentence imposed upon a convicted defendant is within the sole discretion of the sentencing judge, Commonwealth v. Williams, 456 Pa. 550, 317 A.2d 250 (1974), and that the lower court's discretion is very broad in the matter of sentencing, Commonwealth v. Cox, 441 Pa. 64, 270 A.2d 207 (1970); Commonwealth v. Rodriquez, 229 Pa. Superior Ct. 449, 323 A.2d 396 (1974). It is equally well-settled that an appellate court will not find an abuse of that broad discretion, providing that the sentence is within statutory limits, unless the sentence imposed is so manifestly excessive as to inflict too severe a punishment. Commonwealth v. Person, 450 Pa. 1, 297 A.2d 460 (1972); Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 ...


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