No. 302 Pittsburgh, 1983, Appeal from the Judgment of Sentence of February 23, 1983 in the Court of Common Pleas of Mercer County, Criminal Division, No. 457 Criminal 1981
Robert G. Kochems, Mercer, for appellant.
James P. Epstein, Assistant District Attorney, Sharon, for Commonwealth, appellee.
Brosky, Tamilia and Roberts, JJ. Brosky, J., concurs with statement. Roberts, J., concurs in the result.
[ 340 Pa. Super. Page 192]
Appellant brings this appeal from the judgment of sentence entered February 23, 1983 in the Court of Common Pleas of Mercer County. In a jury trial, appellant was convicted of burglary and simple assault, and sentenced to a term of imprisonment of four years to ten years on the burglary conviction. No sentence on the simple assault conviction was imposed. See 18 Pa.C.S.A. § 3502(d). Appellant filed a Motion to Modify the Sentence and Post-Trial Motions which were denied by the lower court.
Appellant challenges the propriety of the sentence imposed. He contends that the sentencing court impermissibly relied on the pre-sentence report because it did not indicate the dispositions of approximately twelve prior arrests allegedly involving appellant. Appellant also contends that his fifth amendment right against the self-incrimination was abridged because he was compelled to answer questions put to him by the sentencing court regarding the dispositions of those arrests. Lastly, appellant contends that the sentence imposed is excessive.*fn1 We find these contentions meritless, and, therefore, affirm.
[ 340 Pa. Super. Page 193]
Sentencing was conducted over the course of three separate days.*fn2 On February 11, 1983, appellant appeared before Judge Fornelli at which time questions arose pertaining to the presentence report indicating twelve prior arrests allegedly involving appellant. Trial counsel and the court engaged in the following colloquy:
MR. KOCHEMS [trial counsel]: . . . I would like to point out that we have some problem with the number of arrests shown and as having taken place in Ohio. The incidents are not specific enough and cover an extensive period of time, nor do they reflect dispositions in that we are able to determine whether or not those were all this particular Keith Allen's. He does have some recollection of at least one arrest in Ohio and being on probation therefor . . . .
THE COURT: How may of the prior records do you question?
MR. KOCHEMS: All of them except, perhaps, one theft charge, Your Honor.
THE COURT: I'm not going to sentence this man this morning if there is any question on his prior record which weighs very heavily on his sentence I intend to impose on him . . . .
On February 15, 1983, appellant and trial counsel reappeared before Judge Fornelli at which time trial counsel informed the court that he was unable to corroborate the
[ 340 Pa. Super. Page 194]
arrest record, and that appellant would refuse to answer the court's questions regarding it on fifth amendment grounds. The following colloquy ensued:
THE COURT: Mr. Kochems, as you know at the sentence in this case you had indicated that you had not had an opportunity to fully verify the prior record of the defendant and that there was some question as to the prior record.
I would like to know which, if any, of the prior record data on the P.S.I. is considered to be inaccurate?
MR. KOCHEMS: Your Honor, it is our position, not that we didn't have the opportunity to verify it, but it does not reflect the disposition of the charges in Ohio, except in one instance. It is our position, therefore, under Section 9737 of the 42 Pennsylvania Consolidated Statutes that the record is not admissible and may not be considered by the Court.
THE COURT: Well, I suppose the first thing is to ask Mr. Allen.
MR. KOCHEMS: Your Honor, we don't believe Mr. Allen has to cooperate in a pre-sentence report and he has an absolute right to maintain silence at this time because he has post-trial motions pending and that, we think, this goes to some type of jeopardy that he would be placed in by the Court.
After further dialogue between the court and counsel, the court, expressing the belief defendant had the obligation to answer questions regarding prior offenses to the court, continued the proceeding to permit counsel to brief the issue. (N.T. pp. 6-8, 15). Sentencing was ...