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COMMONWEALTH PENNSYLVANIA v. JAMES F. WOLFE (01/17/86)

filed: January 17, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES F. WOLFE, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Chester County, Criminal Division, No. 2459-82, 0292-83, 0293-83, 0294-83

COUNSEL

John R. Merrick, Public Defender, John J. Stanzione, Assistant Public Defender, West Chester, for appellant.

Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.

McEwen, Montemuro and Tamilia, JJ.

Author: Tamilia

[ 349 Pa. Super. Page 417]

This appeal lies from judgment of sentence entered pursuant to appellant's pleas of guilty on November 28, 1984, to four counts each of burglary and criminal conspiracy contained in four separate informations. The charges stemmed from burglaries committed over a two-week period. In imposing the sentence (an aggregate of four to eight

[ 349 Pa. Super. Page 418]

    years)*fn1 the court expressly cumulated offenses committed earlier in time to apply them as prior convictions for enhancing the sentences imposed on the later incidents. This geometric escalation of punishment forms the basis for the instant appeal as it is claimed to be an improper application of the sentencing guidelines. Appellant also characterizes the sentence as excessive in light of his individual circumstances.

We believe the resolution of the difficulty to lie in statutory interpretation. Despite appellee's pronouncement that the Statutory Construction Act, 1 Pa.C.S.A. § 1928(b)(1),*fn2 is inapplicable because the governing section of the sentencing code is "clear and unambiguous", we are not reassured. The provision does not exist in a vacuum; it was written and must be read in conjunction, that is, in pari materia, with the rest of the statute so as to give effect to all provisions, 1 Pa.C.S.A. § 1922, and in addition must be interpreted in light of existing Pennsylvania law. The root of the confusion is 204 Pa.Code § 303.7(g).

(g) Prior conviction. A prior conviction is defined as a case in which a verdict of guilty has been entered in the record and sentence has been imposed for an offense which occurred prior to the date of the current offense, notwithstanding any appeal taken on the offense.

The trial court has obviously construed the notion of priority to encompass immediacy as well. However, we find this construction inimical both to principles of substantial justice, and the manifest intent of the legislature in fashioning penalties specific to recidivists.

When a criminal statute is susceptible of two constructions, both reasonable, it is not ...


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