No. 2295 Philadelphia, 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, No. 83-02-504, 507.
Maxine Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Stanton M. Lacks, Doylestown, for appellee.
Rowley, McEwen and Hoffman, JJ.
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In May, 1983, appellee Mahlon W. Drumgoole was convicted in a non-jury trial of robbery, aggravated assault and criminal conspiracy. During the robbery, which was committed on November 19, 1982, the sixty-one year old victim was shot by appellee's accomplice. At the subsequent sentence hearing, the Commonwealth requested that appellee be given a minimum sentence for robbery within the mitigated minimum range provided by the Pennsylvania Sentencing Guidelines. The mitigated minimum range provided by the Guidelines is thirty-nine (39) to sixty (60) months imprisonment. The trial court, however, imposed a five (5) year term of probation on the robbery charge and a concurrent sentence, on the aggravated assault charge, of "Time in to twenty-three (23) months". The "Time in", according to the trial court, was approximately two (2) months at the time of sentence. No sentence was imposed on the charge of conspiracy.
The Commonwealth filed a petition for reconsideration of sentence. The trial court vacated the sentence originally imposed but after further consideration reimposed the same sentence. The Commonwealth has filed this appeal claiming that the trial court, in imposing sentence, abused its discretion by unreasonably deviating from the Sentencing Guidelines. Since we agree, the judgment of sentence is vacated and the case remanded for resentencing.
Initially, it is important to consider whether the Commonwealth's appeal is properly before us. The Commonwealth claims that the appeal is taken pursuant to 42 Pa.C.S.A. § 742 and 42 Pa.C.S.A. § 9781(b). Section 742, however, does not grant a right of appeal to any party but merely provides for the exclusive appellate jurisdiction of this Court from final orders when a right of appeal exists. Section 9781, however, is part of the "Sentencing Code" and extends to the Commonwealth the right to appeal the discretionary aspects of a sentence imposed for a felony or a
[ 341 Pa. Super. Page 472]
misdemeanor. Section 9781(b) further provides, however, that an appeal of the discretionary aspects of a sentence is to be taken by filing a petition for allowance of appeal with the appropriate appellate court. The subsection goes on to provide that "[a]llowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter." The Commonwealth has not filed a petition for allowance of appeal and this Court, prior to argument, had not determined that an appeal should be granted to the Commonwealth.
However, the Supreme Court of Pennsylvania by amendment to the Note following Pa.R.A.P. 902 provided:
Section 9781 of the Sentencing Code (42 Pa.C.S. § 9781) provides that the defendant or the Commonwealth may file a 'petition for allowance of appeal' of the discretionary aspects of a sentence for a felony or a misdemeanor. The notice of appeal under this chapter (see Rule 904 (content of the notice of appeal)) operates as the 'petition for allowance of appeal' under the Sentencing Code. It automatically raises all possible questions under 42 Pa.C.S. § 9781 and is available and appropriate even where no issue relating to guilt or the legality of the sentence (in the sense that the sentence falls outside ...