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November 6, 1981


No. 2394 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County, No. 1051 of 1980.

Before Hester, Disalle and Montgomery, JJ.


Appellant, Merle David Stoltzfus, pleaded guilty to simple assault before the Honorable D. Richard Eckman. Following a pre-sentence investigation, Appellant was sentenced to one to two years incarceration and fined $100.00. Appellant's motion to modify this sentence was denied and he filed this direct appeal, challenging the validity of the sentence. We affirm.

At the time of Appellant's guilty plea, the lower court, upon request of defense counsel, ordered a psychological evaluation of Appellant. This evaluation was not completed by the sentencing date and defense counsel requested a continuance, which was denied. At the sentencing, the trial court had before it a one-year-old evaluation from Philhaven Hospital, and a letter dated one month prior to detencing from the director of Philhaven updating that report. Appellant claims the trial court should have continued the sentencing so a current psychological evaluation could be completed.

The determination of appropriate sentence is a matter within the sound discretion of the trial court, whose decision will not be reversed absent a manifest abuse of that discretion. Commonwealth v. Lee, Pa. Superior Ct. , 420 A.2d 708 (1980). In addition, the trial court has no duty to order a psychological evaluation and may, in its discretion, proceed to sentence a defendant without such an evaluation. Commonwealth ex rel. Camara v. Myers, 201 Pa. Superior Ct. 496, 193 A.2d 642 (1963). In the instant case, the trial court considered Appellant's work history, educational background, prior criminal record, sporadic history of psychological counseling and the fact that previous counseling and short-term incarceration had not caused Appellant to change his lifestyle. In addition, Appellant does not give any concrete reasons for the necessity of an evaluation. We believe the trial court had sufficient information before it to sentence Appellant without a more current evaluation and, since it would not have been an abuse of discretion to refuse to order an evaluation, we do not see how it could be an abuse of discretion to proceed without the evaluation previously requested.

Appellant also contends that it was error for the trial court to consider the confidential letter from the director of Philhaven because it was received by the judge ex parte. In support of this position, Appellant cites Commonwealth v. Schwartz, Pa. Superior Ct. , 418 A.2d 637 (1980), which held that ex parte information should be disclosed to the defendant to give him an opportunity to refute it. Appellant's argument on this point has no merit. First, Appellant did not raise any objection to the use of this information at the time of sentencing. Commonwealth v. Doyle, Pa. Superior Ct. , 418 A.2d 1336 (1979). Second, Appellant indicates in his brief that counsel did see the letter, albeit just prior to sentencing. Appellant, however, did not present any evidence on his own behalf nor does he indicate what information he would have refuted if the letter had been available earlier. See Commonwealth v. Smith, 250 Pa. Superior Ct. 537, 378 A.2d 1278 (1977). Thus, we do not believe the trial court abused its discretion in sentencing Appellant.



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