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COMMONWEALTH PENNSYLVANIA v. MICHAEL W. SCOTT (08/30/85)

filed: August 30, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL W. SCOTT, APPELLANT



Appeal from the Judgment of Sentence of June 4, 1984 in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 282, 282, 284 March, 1983.

COUNSEL

John W. Nails, Chester, for appellant.

Susan Kahn, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Beck and Cercone, JJ.

Author: Beck

[ 345 Pa. Super. Page 88]

Appellant was convicted of murder in the third degree and possessing instruments of crime generally. Appellant was charged with first-degree murder, third-degree murder, voluntary manslaughter and possessing instruments of crime generally.

On appeal, appellant who was sentenced to life imprisonment, questions whether the court erred in stating during the jury waiver colloquy that the maximum sentence for third degree murder was ten to twenty years and whether this statement was prejudicial to him.

Appellant's life sentence is based on section 9715 of the Sentencing Code, 42 Pa.C.S. ยง 9715:

Section 9715 life imprisonment for homicide (a) Mandatory life imprisonment -- . . . any person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth . . . shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.

The judge did not, however, commit error in stating that a conviction for third-degree murder carried a ten to twenty year sentence. At the time of the jury waiver

[ 345 Pa. Super. Page 89]

    colloquy the judge had no knowledge of appellant's previous murder convictions. It can hardly be said that the court was in error in not informing appellant about the enlargement of sentence when the record of appellant's prior convictions was not before the court.

Additionally, the charges against appellant in the matter sub judice, i.e., the charge of first-degree murder, exposed appellant to a life sentence. When appellant agreed to waive the jury, he already knew a life sentence was possible. Therefore, appellant cannot say that the judge's statement relating to third-degree murder was the basis for his jury waiver and was prejudicial to him.*fn1 Appellant makes no claim that if judge had ...


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