Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



filed: September 11, 1984.


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.


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, Commonwealth v. Bell, 417 Pa. 291, 208 A.2d 465 (1965) where it was held that

     evidence of defendant's commission of other crimes, consisting of his own freely-made admissions, even though the crimes were committed after the crime on trial, is relevant and an important consideration for the jury in the determination of what manner of man the defendant is on the day the awesome decision must be made as to whether he should live or die.

Id., 417 Pa. 297, 208 A.2d at 468. See also Commonwealth v. Campbell, 228 Pa. Super. 215, 323 A.2d 859 (1974).*fn3

[ 333 Pa. Super. Page 47]

Moreover, appellant's sentencing colloquy was lengthy and extensive. The judge adhered to the general standards set forth in 42 Pa.C.S.A. 9721(b). He considered, inter alia, appellant's youth, background, the nature of the offenses, appellant's good record prior to the offense and chose not to consider certain disorderly conduct convictions mentioned in a pre-sentence report. The court interposed that appellant "quite possibly need[ed]" rehabilitation during his incarceration. The Court noted

So you have a prior conviction in this Court for theft -- again, which cannot be overlooked from the standpoint of your rehabilitative needs. Your counsel has argued that your time in jail for which I will give you credit of one hundred forty days, did show you that you had done something wrong, and yet the record indicates that you came back subsequently and did something wrong again, and, therefore, your rehabilitative needs must be met . . . .

     and stated that these offenses arose from "a willingness to use fire because of your own frustrations and anger -- again, with the potential of serious harm."

Since appellant's sentence was not manifestly excessive and the sentencing judge did not consider impermissible factors, there was no abuse of discretion.*fn4

Judgment of sentence affirmed.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.