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COMMONWEALTH PENNSYLVANIA v. JAMES A. MALENO (10/31/85)

submitted: October 31, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JAMES A. MALENO



Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 84-09-635.

COUNSEL

Eric B. Henson, Deputy District Attorney, Philadelphia, for Com., appellant.

John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.

Cirillo, Tamilia and Montgomery, JJ.

Author: Tamilia

[ 348 Pa. Super. Page 428]

The crux of this case is the assignment of a correct prior record score to a conviction under a (prior) statute which did not contain variations in grading for the offense in question. Inextricably involved in this issue is the extent to which the court is bound by criminal record information contained in a presentence report.

Appellant entered an open plea of guilty to simple/aggravated assault for his apparently unprovoked attack with a baseball bat upon his paramour's father. The assault produced a skull fracture, and ultimately, permanent brain damage. The sentence imposed was 25 months to 7 years imprisonment, which the Commonwealth, pursuant to 42 Pa.C.S.A. ยง 9781(b)*fn1 claims is reflective of an impermissible deviation from the sentencing guidelines.

The issue arises because in computing the penalty the court assigned a prior record score of one to appellee's 1974 robbery conviction; the presentence report had calculated the score at a value of three. The governing 1972 robbery

[ 348 Pa. Super. Page 429]

    statute contained only one grading of that offense -- first degree felony, which under the guidelines carries a score of three. The court found that the Commonwealth is required to prove the grading of a prior offense from the trial record, and although given the opportunity failed to do so. The court further explained that prior law was not within the contemplation of the guidelines, and that it would be unfair "to count an offense a robbery of the first degree simply because it occurred under the prior Act." (Slip Op. at 3)

To begin in anticlimatic sequence, the pronouncement of the court as to the Commonwealth's burden of proof runs counter to our holding in Commonwealth v. Charles, 339 Pa. Super. 284, 488 A.2d 1126 (1985), that:

We extrapolate from this rule the conclusion that information concerning prior convictions in the presentence report is presumed to be valid, which presumption can only be rebutted by the defense, and need not be supported by evidence ...


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