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COMMONWEALTH PENNSYLVANIA v. HAROLD WILLIAM JOHNSON (09/11/84)

filed: September 11, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
HAROLD WILLIAM JOHNSON, APPELLANT



No. 02430 Philadelphia 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Chester County at No. 774-80.

COUNSEL

Marsha A. McClellan, Assistant Public Defender, West Chester, for appellant.

Stuart Suss, Assistant District Attorney, West Chester, for Commonwealth, appellee.

Wieand, Olszewski and Popovich, JJ.

Author: Popovich

[ 333 Pa. Super. Page 44]

This is an appeal by Harold William Johnson, appellant, from a judgment of sentence entered on August 1, 1983, after he was convicted of arson arising from events occurring on December 23, 1979, upon entry of a plea of nolo contendere. On April 25, 1980, appellant was sentenced in New Jersey on arson charges arising from events occurring on or about January 1, 1980. After sentencing on that charge, appellant was returned to Chester County to answer the charges from which this appeal arises. On September 10, 1980, the lower court granted appellant's motion to dismiss pursuant to Rule 1100, and appellant was discharged from custody. The Commonwealth's appeal therefrom was not successful until October 8, 1982,*fn1 and, in the interim, on May 28, 1981, appellant was convicted of theft

[ 333 Pa. Super. Page 45]

    and receiving stolen property. We affirm the judgment of sentence wherein appellant was sentenced to a term of eighteen to thirty-six months' incarceration.

Appellant's contentions are two-fold and related. First, he claims that the sentencing judge improperly considered convictions for offenses committed subsequent to the one at issue, which he alleges are not "prior convictions".*fn2 Secondly, he contends that the sentence was manifestly excessive since he maintains that the judge did not consider sentencing alternatives nor appellant's rehabilitative needs.

A sentencing court must examine the circumstances of the crime and the individual background of the defendant since the sentence imposed must be the minimum punishment consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. Commonwealth v. Burtner, 307 Pa. Super. 230, 453 A.2d 10 (1982). The court may also consider a defendant's prior arrests which did not result in convictions, as long as the court recognizes that the defendant had not been convicted of the charges. Commonwealth v. Bryant, 312 Pa. Super. 379, 458 A.2d 1010 (1983). Broad discretion is reposed in the sentencing judge to receive relevant information. Commonwealth v. Vernille, 275 Pa. Super. 263, 418 A.2d 713 (1980). Generally, the imposition of a sentence is within the discretion of the trial court and is left undisturbed on appeal because the trial court is in a better position to weigh factors involved in its determination; however, this discretion must be exercised within certain procedural limits, including consideration of sufficient and accurate information. Commonwealth v. Bromund, 278 Pa. Super. 189, 420 A.2d 493 (1980).

[ 333 Pa. Super. Page 46]

In fact, the sentencing judge did take into consideration appellant's intervening criminal activities and the convictions therefor and would have been remiss in not having done so. Those acts reflected appellant's character as a convicted repeat offender as well as his lack of contrition. Commonwealth v. Gallagher, 296 Pa. Super. 382, 442 A.2d 820 (1982).

In Commonwealth ex rel. Norman v. Banmiller, 395 Pa. 232, 149 A.2d 881 (1959) it was held that in a prosecution for first degree murder, defendant's prior convictions before and after the murder were properly admissible for the sole purpose of enabling a jury to determine defendant's sentence. See also, ...


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