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COMMONWEALTH PENNSYLVANIA v. JAMES EDWARD GARRISON (11/06/81)

filed: November 6, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
JAMES EDWARD GARRISON, APPELLANT



No. 721 PITTSBURGH, 1980, Appeal from Order Denying Modification of Sentence dated June 10, 1980, by the Court of Common Pleas, Criminal Division, Mercer County, Pa., at No.: 65 Criminal, 1980, No. 66 Criminal 1980, No. 491 Criminal, 1979, No. 492 Criminal, 1979, No. 493 Criminal, 1979 and No. 526 Criminal, 1979

COUNSEL

Chester B. Scholl, Jr., Sharon, for appellant.

Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.

Cavanaugh, Johnson and Shertz, JJ.

Author: Shertz

[ 292 Pa. Super. Page 329]

This is an appeal from an Order denying modification of the sentence imposed by the trial court following Appellant's guilty pleas. Appellant asserts that (1) in determining the sentence, the trial court relied on an impermissible factor, (2) the trial court failed to consider the guidelines in the Sentencing Code pertaining to probation and total confinement and (3) the trial court abused its discretion by imposing a manifestly excessive sentence. We disagree and therefore affirm.

The offenses in question were committed between November 12, 1979, and November 17, 1979. During this period, Appellant, together with a much younger adult and a juvenile, participated in a series of house burglaries and an attempted armed robbery. Appellant was arrested and pleaded guilty to seven criminal charges, including attempted armed robbery,*fn1 five counts of burglary*fn2 and theft by unlawful taking.*fn3 On May 6, 1980, he received a sentence of three to ten years for attempted robbery and a like sentence for one of the burglary charges, two to four years for each of the remaining four burglary charges and one to two years for theft by unlawful taking, all sentences to be served concurrently.*fn4 Appellant was also ordered to make restitution, with reference to two of the five burglary counts, in an amount totaling $880.22.

When sentence was imposed, the trial court duly advised Appellant of his right to file a motion for reconsideration of sentence pursuant to Pa.R.Crim.P. 1410. Appellant failed to file such a motion within the ten day period prescribed by

[ 292 Pa. Super. Page 330]

    the rule, but did so belatedly and without leave of court. Nevertheless, the court considered the motion on its merits and, on June 10, 1980, denied it. This appeal followed.

Appellant first argues that the trial court gave consideration to an impermissible factor when it imposed sentence. Specifically, Appellant contends that his father's statement concerning Appellant's involvement with drugs unduly influenced the court at the time of sentencing and that, because this statement was unsubstantiated, it was an impermissible factor to consider.

We note that neither Appellant nor his attorney objected at the sentencing hearing to the father's statement concerning drugs. This issue has therefore been waived. Piernikowski v. Cardillo, 263 Pa. Super. 202, 397 A.2d 817 (1979); Nobel v. West Penn Power Co., 36 Pa. Commw. 577, 388 A.2d 781 (1978). Waiver aside, however, the result would be the same. In a rather lengthy on the record explanation of the sentences, the court makes no reference to drug usage. Therefore, it would appear that the statement had no effect on the sentencing determination. Moreover, even if the trial court relied on the statement, such information is relevant to its assessment of the character of the Appellant and is therefore a permissible factor in sentencing. Commonwealth v. Goldbard, 276 Pa. Super. 193, 419 A.2d 161 (1980).

Appellant next contends that the trial court failed to take into account all the factors that must be weighed in rejecting probation and in imposing a sentence of total confinement. Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977). Specifically, he argues that the trial judge failed to consider the fact that ...


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