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COMMONWEALTH PENNSYLVANIA v. DONALD JOHNSON (09/01/81)

SUPERIOR COURT OF PENNSYLVANIA


submitted: September 1, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
DONALD JOHNSON, APPELLANT

No. 1008 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. 8003141A.

COUNSEL

Donald R. Calaiaro, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth appellee.

Wickersham, Beck and Wieand, JJ. Beck, J., concurs in the result.

Author: Wickersham

[ 293 Pa. Super. Page 143]

Following a jury trial before the Honorable George H. Ross of the Court of Common Pleas of Allegheny County,

[ 293 Pa. Super. Page 144]

    appellant, Donald Johnson, was convicted of burglary, receiving stolen property and possessing the instruments of crime. Thereafter, Judge Ross sentenced appellant to a term of imprisonment of one and one-half to three years. Appellant then filed a timely motion to reconsider sentence*fn1 which Judge Ross denied. This appeal was taken from the judgment of sentence.*fn2

At trial, Bernard Hughes, a fifteen year veteran police officer for the City of Pittsburgh, testified that he received a call at about 12:30 a. m. on April 28, 1980, that there was an alarm coming in at 943 Liberty Avenue in the downtown business area of Pittsburgh. The Fairview bookstore, a store dealing in pornographic material, is located at that address. Hughes testified that he and Officer Lamb, arrived in their police car about two minutes after they received the call and observed Detective Martine standing in front of the store. They proceeded to the rear and discovered a burglary in progress.

A As we entered into Exchange Way, there was a car about a half a car length into Exchange Way. The trunk was open in this vehicle. It was '72 Cadillac Coupe, and the color was blue, and the trunk was open. There were two black males standing at the rear of the vehicle, and they were placing garbage containers, green plastic garbage containers into the trunk of this automobile. They stopped their movements as we pulled in behind them. The contents of the trash containers were evident, they were visible; they were T.V. video cassettes. Both myself and Officer Lamb exited the police vehicle. I said, "What's going on here?" to both actors who were

[ 293 Pa. Super. Page 145]

    standing at the rear of the trunk of the vehicle. And I said, "What's going on?" And the defendant walked to the -- there was a parked vehicle alongside of us -- he walked in front of that parked vehicle. I drew my service revolver and told him hold it right there. He ran between the automobile and the wall of the building there, and he was on the other side of this vehicle. He ran past me, and I told him halt. He ran out onto Tenth, and tripped on the curb. He fell to the street. I said, 'Hold it right there,' and I ran over to grab him, but he got up very quickly and began running down Tenth Street to Liberty Avenue with myself in pursuit on foot. I had a walkie-talkie with me, and I relayed his description as I chased him across Liberty Avenue down William Penn Way towards Seventh. At no time did I lose sight of the defendant. He turned up Liberty and headed toward Grant Street. I continued, I turned the corner in pursuit of him, and he got up to Grant Street and went over across Grant to where the U.S. Steel Building is, and he ducked down behind parked cars. I saw him drop down, and I radioed. 'There he is,' because 2-3 car had just come down Grant. I said, 'There he is, he's down behind the cars.' They got out of their vehicle, ran over to him and grabbed him, and we arrested him.

Record at 14-16.

On this appeal it is the contention of the appellant that he was denied his constitutional right to due process when the sentencing judge considered appellant's juvenile record.*fn3 There is no merit to this contention and we will affirm the judgment of sentence.

[ 293 Pa. Super. Page 146]

In Commonwealth v. Stitzel, 179 Pa. Superior Ct. 80, 115 A.2d 805 (1955), Judge Woodside, speaking for the Superior Court of Pennsylvania, said:

A sentencing judge, and others dealing with the sentence, cannot with justice to the boy or the public ignore completely the boy's conduct during the time he was within the age of the juvenile court law.

Id., 179 Pa. Super. at 83, 115 A.2d at 806.

Again in Commonwealth ex rel. Hendrickson v. Myers, 182 Pa. Superior Ct. 169, 126 A.2d 485 (1956), we said:

[ 293 Pa. Super. Page 147]

At the time of sentence relator's juvenile court record was brought to the attention of Judge Boyer, the sentencing judge. In this there was no error. He had been brought into the juvenile court on one serious charge. He was found delinquent because of a burglary committed by him in 1942 when he was more than 17 years old, and was placed on probation. Section 19 of the Act of June 2, 1933, P.L. 1433, 11 P.S. § 261 provides: 'The disposition of a child or any evidence given in a juvenile court shall not be admissible as evidence against the child in any case or proceeding in any other court.' The juvenile court in this instance was the Court of Quarter Sessions of Bucks County. 11 P.S. § 243. The above prohibition of the Act had no application here. The judge was entitled to all of the material facts to inform him as to what kind of an offender he was dealing with to assist him in determining the appropriate penalty. Commonwealth v. Petrillo, 340 Pa. 33, 47, 16 A.2d 50. Prior to sentence relator admitted the larceny of still another automobile in 1945 in Washington, D.C. and his apprehension in Connecticut, although he stated that the charges against him in that instance were 'dropped.' Cf. Com. ex rel. Reichelderfer v. Burke, 176 Pa. Super. 215, 218, 107 A.2d 578. In Com. ex rel. Czarnecki v. Stitzel, 179 Pa. Super. 80, 82, 83, 115 A.2d 805, 806, Judge Woodside's statement is almost axiomatic to this effect: 'A sentencing judge * * * cannot with justice to * * * the public ignore completely the boy's conduct during the time he was within the age of the juvenile court law.'

Id., 182 Pa. Super. at 173-74, 126 A.2d at 487.

More recently our court speaking through Judge Cercone (now President Judge) reaffirmed our holding that the prior juvenile record of a defendant may be considered by the sentencing judge when imposing sentence. Commonwealth v. Riviera, 254 Pa. Superior Ct. 196, 385 A.2d 976 (1978).

Rule 1403 of the Pennsylvania Rules of Criminal Procedure, entitled "Aids in Imposing Sentence" provides that the

[ 293 Pa. Super. Page 148]

    sentencing judge may, in his discretion, order a pre-sentence investigation report in any case, which report shall include information regarding the circumstances of the offense and the character of the defendant sufficient to assist the court in determining sentence.

Indeed, the Sentencing Code*fn4 provides in § 9722 the following grounds which shall be accorded weight by the court in determining the appropriate sentence:

The following grounds, while not controlling the discretion of the court shall be accorded weight in favor of an order of probation:

(1) The criminal conduct of the defendant neither caused nor threatened serious harm.

(2) The defendant did not contemplate that his conduct would cause or threaten serious harm.

(3) The defendant acted under a strong provocation.

(4) There were substantial grounds tending to excuse or justify the criminal conduct of the defendant, though failing to establish a defense.

(5) The victim of the criminal conduct of the defendant induced or facilitated its commission.

(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.

(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.

(8) The criminal conduct of the defendant was the result of circumstances unlikely to recur.

(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.

(10) The defendant is particularly likely to respond affirmatively to probationary treatment.

(11) The confinement of the defendant would entail excessive hardship to him or his dependents.

[ 293 Pa. Super. Page 149]

(12) Such other grounds as indicate the desirability of probation.

(Emphasis added).

And again the Sentencing Code provides in § 9732, relating to the contents of presentence report that:

The presentence report shall include a summary of the circumstances attending the commission of the crime, the history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation and personal habits of the defendant, and any other matters that the person preparing the report deems relevant or that the court directs be included.

(Emphasis added).

We hold that the sentencing judge in the instant matter had not only the right but a duty to review the record of delinquency during the sentencing process, and that such review did not violate due process.

Judgment of sentence affirmed.


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