No. 682 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 79-09-32
Gaele Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Leonard Sosnov, Assistant Public Defender, Philadelphia, for appellee.
Cercone, President Judge, and Spaeth, Cavanaugh, Wieand, McEwen, Cirillo and Montemuro, JJ.
[ 304 Pa. Super. Page 478]
The principal issue in this appeal is whether Pa.R.Crim.P. 1410 requires the Commonwealth, as well as a defendant, to file a motion to modify sentence with the sentencing court before obtaining appellate review of a sentence. We hold that the rule does have application to the Commonwealth and that a failure to comply therewith constitutes a waiver of the right to appellate review of the sentence. For this reason, we do not consider substantively the Commonwealth's contention that the sentence imposed in this case disregarded an applicable guideline without cause and was too lenient.
Theodore D. Anderson was tried without jury and convicted of robbery and possession of an instrument of crime.*fn1 It was Anderson's third conviction for robbery. At sentencing, the prosecution requested the trial court to impose a sentence consistent with Section 5 of the Act of November 26, P.L. 1316, No. 319 (hereinafter Act 319).*fn2 This statute provided, in relevant part, as follows:
(a) Until sentencing guidelines adopted by the Pennsylvania Commission on Sentencing and relating to the offenses set out in this subsection become effective pursuant to 18 Pa.C.S. § 1385 (relating to publication of guidelines for sentencing) when any person is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault as defined in 18 Pa.C.S.
[ 304 Pa. Super. Page 479]
§ 2702(a)(1) (relating to aggravated assault) involving the use of a firearm, arson or kidnapping, or of attempt to commit any of these crimes, and when that person has been previously convicted in this Commonwealth, or any other state or the District of Columbia, or any Federal court, of any of the offenses set forth in this section or their equivalent, the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum term of not less than four years imprisonment.
(b) In any case where a court sentences a person subject to the provisions of subsection (a), to a term of less than four years imprisonment, the court shall provide a contemporaneous written statement of the reason or reasons for the sentence.
Despite this guideline, the trial court imposed upon Anderson a sentence of imprisonment for "[t]ime in [six months] to twenty-three months, with parole effective [immediately] on condition that he enter Genesis II*fn3 and upon completion . . . enter into the Alcoholics Anonymous program." In support of the sentence, the court opined and stated on the record that appellee's alcoholic bouts had caused him to lose inhibitory control, and that his abuse of alcohol had been the cause of his problems with the criminal justice system.
The Commonwealth contends on appeal (1) that the evidence failed to support the conclusion that appellee's commission of the offense for which he was being sentenced had been caused by alcohol abuse or that the offense had been committed while appellee was under the influence of alcohol, and (2) that, in any event, appellee's history of alcohol abuse was an insufficient ...