filed: April 15, 1983.
COMMONWEALTH OF PENNSYLVANIA
ALAN THOMAS BRYANT, APPELLANT
No. 433 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Chester County at No. 135680.
Richard Eric Moose, West Chester, for appellant.
Phyllis R. Streitel, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Spaeth, Wickersham and Cirillo, JJ.
[ 312 Pa. Super. Page 380]
This appeal arises out of Alan Thomas Bryant's challenge to the sentence he received after pleading guilty to rape and other offenses. On August 9, 1980, Bryant was charged with rape, robbery, kidnapping, unlawful restraint, false imprisonment, aggravated assault, simple assault, terroristic threats, recklessly endangering another person, firearms violations, theft and criminal conspiracy. Bryant was later charged with involuntary deviate sexual intercourse.*fn1
Bryant, along with a co-defendant, entered an open plea of guilty to the charges of rape, robbery, kidnapping, aggravated assault, involuntary deviate sexual intercourse and conspiracy. The judge below, the Honorable Dominic T. Marrone of the Chester County Court of Common Pleas, conducted
[ 312 Pa. Super. Page 381]
a guilty plea colloquy with Bryant. President Judge Marrone accepted Bryant's plea and deferred sentencing.
On January 20, 1981, Bryant was sentenced to pay a fine and undergo a five to ten year term of imprisonment on the rape charge. A five to ten year sentence was imposed on the robbery charge but this sentence was to be served concurrently with the rape sentence. The other charges against Bryant resulted in a ten year probation period to be served consecutively to the rape sentence.
Bryant's counsel filed a motion for reconsideration of sentence on January 27, 1981. The motion stated that Bryant had been prejudiced by the Assistant District Attorney's reference to the race of the victim and that the sentencing judge erred by considering Bryant's prior arrests, the surrounding circumstances of which were allegedly not fully explained in the presentence report. Bryant filed a timely notice of appeal. On April 24, 1981, the lower court dismissed Bryant's application for reconsideration of sentence.
The facts presented to the court at the hearing on Bryant's guilty plea showed that on August 9, 1980 the victim was working the midnight to eight shift at a store in Lower Oxford Township, Chester County. At approximately five a.m. two men, Bryant and his co-defendant, entered the store and demanded at gun point that the victim give them the money in the cash register. The victim gave Bryant the money and Bryant ordered her, again at gunpoint, into a car with Bryant and the co-defendant.
Bryant drove off with the victim. Both Bryant and his co-defendant had sexual intercourse with the victim; Bryant also committed an act of involuntary deviate sexual intercourse with the victim. The victim tried to escape but Bryant choked her into unconsciousness. When she recovered the co-defendant told her he had saved her life and that he wanted to have sex with her. The victim, by this time wearing only a torn shirt, ran across the fields and got help. Bryant and the co-defendant pleaded guilty to charges arising out of this episode and this appeal followed.
[ 312 Pa. Super. Page 382]
Bryant's sole contention in this appeal is that the sentencing judge erred in considering Bryant's prior arrests when imposing sentence. At sentencing the judge stated:
These, of course, are very serious offenses, and, while this man has no record of convictions, we have also looked at his character in the past, and there have been some charges which were disposed of in other fashions. Record, 1/20/81 at 13.
Bryant argues that the sentencing judge's reference to Bryant's prior arrests was ambiguous and that the judge should not have used the mere happening of an arrest to assess Bryant's character.*fn2
As Judge Spaeth wrote in Commonwealth v. Smith, 250 Pa. Super. 537, 542-43, 378 A.2d 1278, 1281 (1977): "At the sentencing hearing, appellant did not dispute the pre-sentence report. Thereby he waived his right to put the Commonwealth to further proof." See also, Commonwealth v. Cruz, 265 Pa. Super. 474, 402 A.2d 536 (1979). If Bryant disputed the contents of the report or its use, he should have objected at sentencing.
Bryant's contention is meritless, in any event. In Commonwealth v. Shoemaker, 226 Pa. Super. 203, 313 A.2d 342 (1973), aff'd on other grounds, 462 Pa. 342, 341 A.2d 111 (1975) the sentencing judge used a pre-sentence report which showed that the defendant had been arrested several times but did not show the disposition of the arrests. In an
[ 312 Pa. Super. Page 383]
opinion by Judge Spaeth, this court noted that "there can be no doubt that the sentencing judge not only took into account the record of prior arrests, but regarded it as showing criminal conduct . . . . This use of the arrest record was error." Id., 226 Pa. Superior at 212, 313 A.2d at 347.
"It has been held that a court, in imposing sentence may consider prior arrests . . . as long as the court realizes that the defendant had not been convicted on those prior charges." Commonwealth v. Craft, 304 Pa. Super. 494, 500, 450 A.2d 1021, 1024 (1981). Here President Judge Marrone plainly stated that Bryant had no prior convictions as a result of the arrests. Thus, there was no error at sentencing.
Judgment of sentence affirmed.