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COMMONWEALTH PENNSYLVANIA v. JAMES WELDON (05/19/83)

submitted: May 19, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES WELDON, APPELLANT



No. 2643 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal Division, at No. 1076 of 1978

COUNSEL

Michael Alan Klimpl, Doylestown, for appellant.

Michael J. Kane, District Attorney, Doylestown, for Commonwealth, appellee.

Hester, Brosky and Beck, JJ.

Author: Brosky

[ 320 Pa. Super. Page 103]

The sole issue in this appeal from appellant's conviction on charges of burglary, theft, receiving stolen property and conspiracy is whether the sentence imposed on him is excessive. For the reasons that follow, we remand for resentencing.

Appellant was tried and convicted in January, 1979. An appeal was taken from that conviction at which time appellant argued that the conviction was not supported by sufficient evidence and that the sentence imposed on him was excessive. We affirmed the conviction, but remanded for resentencing because the sentencing court had not ordered a pre-sentence report, nor explained its reasons for not doing so. Nor had the court explained on the record its reasons for imposing the sentence it did. Commonwealth v. Weldon, 287 Pa. Super. 533, 430 A.2d 1180 (1980).

On remand, the court ordered a pre-sentence report and held another sentencing hearing. At that hearing the court

[ 320 Pa. Super. Page 104]

    referred generally to the pre-sentence report and said that it was to be incorporated into the record of the proceedings.

The court again sentenced appellant to a term of imprisonment of 2 to 5 years and explained its reasons as follows:

I stated earlier, and I repeat now, that this was a burglary in a residential area far removed from the defendant's home. It was a burglary during, my recollection is, the daylight hours. The owner of the home came in and there could well have been violence. But, of course, none took place.

In my opinion, and in accordance with the dictates of the Sentencing Code, it is the type of crime that unless a sentence of the nature that I am about to impose would be placed upon the defendant, it would depreciate the seriousness of the crime that was committed. ...


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