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COMMONWEALTH PENNSYLVANIA v. ANDREW R. KNEPP (09/20/82)

submitted: September 20, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
ANDREW R. KNEPP, APPELLANT



No. 151 Harrisburg 1981, APPEAL FROM THE JUDGMENT OF SENTENCE OF APRIL 14, 1981 IN THE COURT OF COMMON PLEAS OF JUNIATA COUNTY, CRIMINAL NOS. 61, 73 & 74 OF 1980

COUNSEL

Steven V. Manbeck, Mifflintown, for appellant.

Michael Johnston, District Attorney, Mifflintown, for Commonwealth, appellee.

Wieand, Cirillo and Popovich, JJ.

Author: Cirillo

[ 307 Pa. Super. Page 538]

Appellant entered a guilty plea on January 21, 1981 to a violation of the Uniform Firearms Act*fn1 and two (2) counts of Recklessly endangering another person.*fn2 He was sentenced to pay costs of prosecution, make restitution, if any, and to not less than 1 year nor more than 2 years in prison. Post-sentence motions were denied. This is an appeal from the judgment of sentence.

On appeal, appellant challenges the legality and propriety of the sentence imposed, on the basis that the sentencing court improperly took into consideration that he had previously been in an Accelerated Rehabilitative Disposition (ARD) program,*fn3 resulting from a charge which had also involved a firearm. In imposing sentence, the sentencing judge stated,

The rationale for the imposition of the sentence is that the defendant utilized a firearm in this criminal activity and previously had been involved in an ARD Program wherein firearms were involved. The offense is such that a less severe sentence would depreciate the seriousness of the offense.

[ 307 Pa. Super. Page 539]

This court has held that the trial judge has broad discretion in imposing sentence. Commonwealth v. Rhodes, 272 Pa. Super. 546, 416 A.2d 1031 (1979); Commonwealth v. Riggins, 232 Pa. Super. 32, 332 A.2d 521 (1974); Commonwealth v. Johnson, 235 Pa. Super. 185, 340 A.2d 515 (1975). If the sentence imposed is within statutory limits, there is no abuse of discretion, unless the sentence is manifestly excessive so as to inflict too severe a punishment.*fn4 Commonwealth v. Garrison, 292 Pa. Super. 326, 437 A.2d 407 (1981); Commonwealth v. Shoemaker, 226 Pa. Super. 203, 313 A.2d 342 (1973); Riggins, supra. Absent an abuse of discretion, a sentence imposed by the trial court will not be disturbed on appeal. Commonwealth v. Gillespie, 290 Pa. Super. 336, 434 A.2d 781 (1981); Commonwealth v. Campolei, 284 Pa. Super. 291, 425 A.2d 818 (1981); Commonwealth v. Landi, 280 Pa. Super. 134, 421 A.2d 442 (1980). However, the sentence may be set aside even where it is within statutory guidelines, but the appropriate reasons for sentence do not appear on the record. Commonwealth v. Kostka, 276 Pa. Super. 494, 419 A.2d 566 (1980). If it appears that the trial court relied on an impermissible factor, the sentence will be rendered invalid. Commonwealth v. Cowan, 275 Pa. Super. 341, 418 A.2d 753 (1980); Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977); Kostka, supra.

Before sentencing an individual to a term of more than one year in prison, a pre-sentence investigation and report should be made. 42 Pa.C.S.A. § 9731.*fn5 The contents of this report are to include a history of delinquency or

[ 307 Pa. Super. Page 540]

    criminality, and any other matters that the person preparing the report deems relevant. 42 Pa.C.S.A. § 9732.*fn6 The statute permits reference to be made to all arrests, whatever the disposition of the case. Shoemaker, supra ; 42 Pa.C.S.A. § 9731 et seq. The information used by a judge, in imposing sentence, need not necessarily meet the standards of admissible evidence at trial. Johnson, supra; Shoemaker, supra. In imposing sentence, the sentencing court must consider the particular circumstances of the offense and the character of the defendant in reaching its determination. Commonwealth v. Giffin, 279 Pa. Super. 264, 420 A.2d 1134 (1980); Commonwealth v. Goldbard, 276 Pa. Super. 193, 419 A.2d 161 (1980). In addition, the sentencing judge must make a brief statement of his reasons for the sentence being imposed ...


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