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COMMONWEALTH PENNSYLVANIA v. DANIEL T. STUFFLET (10/23/81)

filed: October 23, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL T. STUFFLET, APPELLANT



No. 116 October Term, 1979, Appeal from Sentence of Court of the Honorable James R. Marsh, President Judge, Court of Common Pleas of the 43rd Judicial District, Monroe County Branch - Criminal, dated December 27, 1978, No. 172 October Term, 1977.

COUNSEL

William R. Smith, Assistant Public Defender, Stroudsburg, for appellant.

Ralph A. Matergia, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Sugerman

[ 291 Pa. Super. Page 518]

On October 14, 1977, Appellant, Daniel T. Stufflet, was found guilty by a jury of Robbery,*fn1 Burglary,*fn2 Recklessly Endangering Another Person,*fn3 and a series of related charges all arising from an incident occurring at a restaurant in Stroudsburg, Pennsylvania. Post trial motions were filed, argued and denied, and on December 27, 1978, Appellant was sentenced upon the Robbery conviction to a term of total confinement of not less than 3 1/2 nor more than 7 years. Sentence was suspended on the remaining convictions.

At the sentencing proceeding, Appellant's counsel was invited to examine and comment upon the Presentence Investigation Report that had been prepared. Appellant's counsel then summarized significant aspects of the Presentence Investigation Report and asked that the Court impose

[ 291 Pa. Super. Page 519]

    a moderate sentence. Both Appellant's counsel and an Assistant District Attorney then presented argument and Appellant was afforded the opportunity to speak. The Court then said:

"THE COURT: Well, of course, there's no question about the fact that we all agree as to the seriousness of the case. Any situation at all when firearms are present creates the potential of death. And because of that, why, it becomes extremely serious. And even though no death or bodily injury actually occurred, it did create the potential for it."

The Court thereupon imposed the foregoing sentence, and advised Appellant of his right to appeal, without further comment.

On appeal, Appellant contends that the quoted remarks of the lower court failed to comport with the mandates of Com. v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), Pa.R.Crim.P. 1405(b), and the Sentencing Code then in effect, 18 Pa.C.S.A. ยง 1301 et seq., in that the Court failed to articulate on the record the reasons for the sentence imposed, and failed to accord weight to the factors and guidelines set forth in the Sentencing Code.

At the outset we note that Appellant's counsel failed to object to the sentence at the time it was imposed and failed to thereafter file a motion to modify the sentence pursuant to Pa.R.Crim.P. 1410 or a petition for reconsideration. In the usual case, the failure of counsel to interpose a timely objection at the sentencing proceeding results in a waiver of the issue, Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Cruz, 265 Pa. Super. 474, 402 A.2d 536 (1979); as does the failure to file an appropriate motion to modify the sentence imposed. Commonwealth v. Riggins, supra; Commonwealth v. Brown, 288 Pa. Super. 171, 431 A.2d 343 (1981); Commonwealth v. Turecki, 278 Pa. Super. 511, 420 A.2d 658 (1980); Commonwealth v. Marshall, 273 Pa. ...


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