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decided: June 7, 1978.


No. 3387 Allocatur Docket, (No. 936 October Term, 1976) Petition for Allowance of Appeal from the Superior Court.


Gary F. DiVito, Philadelphia, for appellant.

Edward G. Rendell, Dist. Atty., Philadelphia County, Robert B. Lawler, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, Justice, concurring.

Author: Per Curiam

[ 478 Pa. Page 481]


A jury convicted petitioner of burglary and conspiracy. The Superior Court, holding that both of petitioner's assignments of error had been waived, affirmed (Spaeth, J., joined by Cercone, J., dissenting). The only issue petitioner presents is whether he waived objections to the sentencing court's alleged consideration of arrests not resulting in convictions. See Commonwealth ex rel. Townsend v. Burke, 361 Pa. 35, 63 A.2d 77 (1949); cf. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (sentencing court may not consider constitutionally invalid convictions); Del Piano v. United States, 575 F.2d 1066 (3rd Cir., 1978) (same).

At sentencing, the court had available a report containing petitioner's criminal record, which revealed eighteen adult arrests for various offenses resulting in nine convictions, and several juvenile dispositions. Petitioner alleges that he requested the court at the sentencing proceeding to disregard arrests not resulting in convictions but that the court expressed its belief that petitioner was guilty even in those instances not resulting in convictions and that therefore the court would consider all the arrests in imposing sentence. The record shows only the following:

"(Whereupon there was continued colloquy concerning the defendant's criminal extract.)"

It is unclear whether the discussion was not transcribed or whether transcription of the conference has been lost.*fn1

We recently reaffirmed that where appellate review of assignments of error is rendered impossible because the

[ 478 Pa. Page 482]

    transcript is unavailable through no fault of the defendant, the disposition in question must be vacated and remanded for proceedings of record. See Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844 (1978); Commonwealth v. Goldsmith, 452 Pa. 22, 304 A.2d 478 (1973); Commonwealth v. Norman, 447 Pa. 515, 291 A.2d 112 (1972); Commonwealth v. DeSimone, 447 Pa. 380, 290 A.2d 93 (1972); Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971). This principle is particularly important with respect to sentencing in light of our recent decisions directing the sentencing court, on the record, to place reasons for the sentence imposed. See Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (plurality opinion); cf. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976) (sentencing court must consider defendant's background, individual characteristics, relative culpability and prospects for rehabilitation); see generally ABA Standards Relating to Appellate Review of Sentences ยง 2.3 (Approved Draft, 1968).

Because the necessary portion of the transcript is missing, this Court cannot determine whether petitioner's claim has been preserved and, if so, whether it has merit. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) (timely objection during proceeding required to preserve issue for appellate review). We therefore grant petitioner's request for allowance of appeal,*fn2 vacate judgment of sentence and remand for a new sentencing hearing of record.

Judgment vacated and remanded for proceedings consistent with this opinion.

POMEROY, Justice, concurring.

Petitioner, Robert Fields, contends that the trial court, in imposing sentence, impermissibly considered certain of

[ 478 Pa. Page 483]

Fields' prior arrests which did not result in convictions. Whether in fact such improper considerations did enter into the determination of the sentence cannot be known because the transcript of the sentencing hearing is incomplete. I am satisfied, however, that petitioner has raised a colorable claim of prejudice resulting from the incomplete record, and thus is entitled to relief. This case is to be distinguished from Commonwealth v. Shields, 477 Pa. 105, , 383 A.2d 844, 848 (1978) (dissenting opinion of POMEROY, J., joined by LARSEN, J.), wherein the defendant on appeal simply made a general, unsubstantiated claim that prosecutorial misconduct had occurred in the district attorney's summation, the transcript of which was missing. Thus I concur in the remand for a new sentencing hearing.*fn*

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