Appeal from the Judgment of Sentence of May 17, 1985 in the Court of Common Pleas of Delaware County, Criminal Division, at No. 4895-84.
Ruth R. Shafer, Assistant Public Defender, Media, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, Newton Square, for Com., appellee.
Montemuro, Hoffman and Cercone, JJ.
[ 361 Pa. Super. Page 108]
This is an appeal from the judgment of sentence for robbery and burglary. Appellant contends that the increase in his sentence on the robbery count, after the trial court vacated his sentences on the counts of aggravated assault, recklessly endangering another person, and theft by unlawful taking, violates the prohibition against double jeopardy. We disagree and affirm the judgment of sentence for robbery and burglary.
On August 14, 1984, appellant was arrested and charged with various offenses in connection with the August 11, 1984 beating and robbery of an eighty-year-old man. Following
[ 361 Pa. Super. Page 109]
a January 23-24, 1985 jury trial, appellant was found guilty of robbery, 18 Pa.C.S.A. § 3701(a)(1)(i), burglary, id. § 3502, aggravated assault, id. § 2702(a)(1), recklessly endangering another person, id. § 2705, and theft by unlawful taking, id. § 3921. Appellant filed no post-verdict motions. On April 22, 1985, appellant was sentenced to the following consecutive terms of imprisonment: 48-to-96 months for robbery, 17-to-34 months for burglary, 17-to-34 months for aggravated assault, 6-to-12 months for recklessly endangering another person, and 6-to-12 months for theft by unlawful taking. Appellant received a total sentence of 94-to-188 months.
Both appellant and the Commonwealth filed motions to modify sentence.*fn1 Both parties alleged that the aggravated assault, recklessly endangering another person, and theft by unlawful taking offenses merged with the robbery offense. The Commonwealth contended, in addition, that appellant should have been sentenced within the aggravated range of the sentencing guidelines, 204 Pa.Code §§ 303.1-.9, reprinted following 42 Pa.C.S.A. § 9721 (Purdon 1982 & Supp.1986), for the burglary and robbery offenses because of aggravating factors including the brutal nature of the crime. See Commonwealth's Motion for Modification of Sentence at 2.
At the May 17, 1985 hearing on the motions, the trial court stated that it had erred in imposing sentence for the crimes of aggravated assault, recklessly endangering another person, and theft and vacated its sentence of April 22. See N.T. May 17, 1985 at 3-4, 13. The court then resentenced appellant on the remaining charges to consecutive terms of imprisonment as follows: 72-to-144 months for
[ 361 Pa. Super. Page 110]
robbery and 12-to-24 months for burglary,*fn2 for a total sentence of 84-to-168 months. Appellant then filed a motion to modify sentence alleging, inter alia, that the increase in sentence on the robbery charge constituted double ...