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COMMONWEALTH PENNSYLVANIA v. JOHN JOSEPH LUPATSKY (03/29/85)

filed: March 29, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN JOSEPH LUPATSKY, APPELLANT



No. 501 Philadelphia, 1984, Appeal from the Judgment of Sentence in the Court of Common Pleas of Columbia County, Criminal Division, No. 178 of 1983

COUNSEL

Peter J. Hill, Assistant Public Defender, Allentown, for appellant.

Elwood R. Harding, Jr., District Attorney, Bloomsburg, for Commonwealth, appellee.

Cirillo, Montemuro and Tamilia, JJ.

Author: Tamilia

[ 341 Pa. Super. Page 339]

This is an appeal from judgment of sentence imposed pursuant to appellant's plea of guilty to three counts of delivering marijuana. Appellant claims that his sentence,

[ 341 Pa. Super. Page 340]

    three concurrent terms of one and one half to five years imprisonment, was excessive and an abuse of judicial discretion. Specifically, it is alleged that the court erred in considering as an aggravating factor prior summary convictions, which, properly, were not factored into the prior record score, in order to escalate appellant's sentence into the aggravated minimum range provided by the Sentencing Guidelines, i.e., that an impermissible procedure was employed resulting in an excessive sentence. If this consideration alone was the basis for increasing the sentence, we would agree. However, the trial court, in sentencing, considered the totality of the defendant's background and particularly emphasized that despite the fact he would agree to concurring sentences on the three offenses, he would not ignore the three separate sales resulting in three separate convictions.

Although appellant's sentence is less than the maximum 7 1/2 to 15 years allowable under 35 Pa.C.S.A. § 780-113(f)(2), we may still set it aside if we find that inadequate reasons have been given for its imposition, Commonwealth v. Gaskin, 325 Pa. Super. 349, 472 A.2d 1154 (1984), or, if from a review of the record it appears that the sentencing court relied partially or wholly on an impermissible factor in fashioning a penalty. Commonwealth v. Duden, 326 Pa. Super. 73, 473 A.2d 614 (1984).

[ 341 Pa. Super. Page 341]

In this instance, the information relied on need not have been eliminated from consideration. It is well settled that the court has broad discretion in sentencing which we will not disturb absent abuse. Commonwealth v. Holler, 326 Pa. Super. 304, 473 A.2d 1103 (1984). It is further clear that the court is bound to examine a range of factors concerning the person and history of the defendant, and the particular circumstances of the crime in fashioning its sentence. Commonwealth v. Weldon, 320 Pa. Super. 102, 466 A.2d 1082 (1983). Prior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized. See e.g., Commonwealth Page 341} v. Bryant, 312 Pa. Super. 379, 458 A.2d 1010 (1983) (prior arrests not resulting in convictions).

We know of no case, and appellee has cited none, which allows prior convictions alone, too minor to be incorporated into a prior record score, to be used as aggravating circumstances in enhancing a sentence, especially where the prior convictions bear no relation to the crime for which penalty is being determined. The sentencing code would, in fact, by analogy, seem to indicate otherwise.

The death penalty statute, 42 Pa.C.S.A. § 9711(d), the only clear exposition of aggravating circumstances, limits these to either of two factual categories: actions connected in an immediate manner to commission of the particular crime, or ...


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