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COMMONWEALTH PENNSYLVANIA v. WALTER MOORE (09/29/82)

submitted: September 29, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
WALTER MOORE, APPELLANT



No. 327 Philadelphia, 1981, Appeal from Judgment of Sentence in the Court of Common Pleas of Phila. County, Criminal at No. 1530 May Term 1980.

COUNSEL

Steven Berk, Philadelphia, for appellant.

Jane Culter Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Wickersham and Cirillo, JJ.

Author: Spaeth

[ 307 Pa. Super. Page 562]

This is an appeal from a judgment of sentence imposed after appellant entered a plea of guilty to a charge of robbery in the third degree. 18 Pa.C.S.A. ยง 3701(b) (1973). The sentence imposed was not less than one year nor more than seven years in prison. Appellant argues that this sentence was excessive. Since the record does not include a transcript of the sentencing proceedings, we remand.

-1-

The Commonwealth argues that appellant has waived his right to challenge his sentence because he did not file a motion to modify the sentence, as prescribed by Pa.R.Crim.P. 1410. However, appellant did not waive his right to challenge his sentence unless he knew that he had such a right, and he will not be deemed to have known that he had such a right unless the lower court told him that he did and also, told him how he could exercise his right. See Commonwealth v. Aldinger, 292 Pa. Super. 149, 436 A.2d 1196 (1981); Commonwealth v. Stufflet, 291 Pa. Super. 516, 436 A.2d 235 (1981).

As transmitted to us, the record does not include a transcript of the sentencing proceeding. Accordingly, we do

[ 307 Pa. Super. Page 563]

    not know whether the lower court told appellant of his right to file a motion challenging the propriety of his sentence. Pa.R.Crim.P. 1405(c)(2). It is the Commonwealth's burden to prove that appellant has waived his right to challenge his sentence. Commonwealth v. Sweitzer, 261 Pa. Super. 183, 395 A.2d 1376 (1978). Given the absence of a transcript of the sentencing proceeding, the Commonwealth has not met its burden.

-2-

In imposing sentence, the sentencing court must, of course, impose a sentence that falls within the statutory sentencing range prescribed for the particular offense. Appellant does not argue, nor could he, that the lower court exceeded the statutorily authorized maximum sentence for robbery ...


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