No. 926 Pittsburgh 1983, Appeal from the Judgment of Sentence July 11, 1983, in the Court of Common Pleas of Allegheny County, Nos. CC8302291A, Criminal.
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
Edward M. Clark, Assistant District Attorney, Indiana, for Commonwealth, appellee.
Rowley, Olszewski and Popovich, JJ. Popovich, J., concurs in the result.
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In this case, appellant, Clyde Charles, a/k/a Clyde Crawford, urges this Court to vacate his sentence of 6 1/2 to 13 years on each of two convictions for violation of 18 Pa.C.S. Sec. 3123 (Purdon's 1983) and remand for resentencing. We affirm the judgment of sentence.
Appellant pleaded guilty to 18 Pa.C.S. Sec. 3123, involuntary deviate sexual intercourse, on June 2, 1983, after a 14-year-old boy told his mother, and subsequently, law enforcement authorities, that the following sequence of events had occurred. Appellant, then 56 years old, had asked the boy to run an errand for him; he then invited him
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into his home, and told him to disrobe. The boy complied, and appellant laid him on a bed and committed sodomy upon him. Appellant let the boy get up, had a brief talk with the boy in which he warned him about telling anyone of the event, and then committed a second act of sodomy on the boy. Appellant then gave the boy $3 and promised to give him a bicycle and more money if he would return and repeat the sexual acts. The boy told his mother about the instance the following day, and appellant was arrested.
At trial, appellant pleaded guilty to the charge of violating Sec. 3123 twice. Sentencing was deferred; on July 11, 1983, appellant was sentenced to 6 1/2 years to 13 years incarceration on each count, sentences to run consecutively.*fn1 Appellant filed a timely motion to reconsider sentence.
Appellant complains here, among other things, that he was subjected to double jeopardy and that the sentence rested in part on improper factors. We address his contentions in order.
Appellant argues that the court went through a fact-finding procedure at the sentencing hearing, and that this proceeding was duplicative of the first time appellant appeared before the court on the same charges. This, he argues, constitutes double jeopardy, and violates his rights under the Fifth and Fourteenth Amendments of the Constitution.
The Commonwealth predictably argues that the second proceeding did not subject appellant to double jeopardy, citing In the Interest of Stephens, 501 Pa. 411, 461 A.2d
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(1983). It argues that not every bifurcated proceeding is violative of double jeopardy principles, and that the rule enunciated in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), has not been abridged.*fn2
It seems plain that the principal case cited by appellant, Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), is inapposite. In that case, the defendant had been convicted of murder, and the jury fixed his sentence at life imprisonment rather than death after deciding no aggravating circumstances existed. The state then attempted, at a new trial, to argue that the death sentence should be imposed; the Supreme Court held that such an attempt placed Bullington in double jeopardy, since he had been acquitted of the aggravating circumstances.
Here, appellant was not sentenced on the conviction for IDSI until the sentencing hearing. He was not convicted at the sentencing hearing of any crime to which he had not pleaded guilty previously. He has not been "twice put in jeopardy of life or limb."
Appellant's second argument is that he was denied due process because the sentencing court took into account the victim's non-consent when imposing punishment. The Commonwealth agrees that consent was a factor in sentencing, but argues that it was a permissible factor, citing appellant's knowledge that consent was to be an issue, that appellant did not object to the Commonwealth's version of the facts, and that appellant's lawyer cross-examined the victim at the sentencing hearing.
Sentencing courts may consider evidence that might not be admitted at trial. Commonwealth v. Knepp, 307 Pa. Super. 535, 453 A.2d 1016 (1982). But they may not disregard ...