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COMMONWEALTH PENNSYLVANIA v. AMOS CLEVELAND (04/22/87)

submitted: April 22, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
AMOS CLEVELAND



Appeal from the Judgment of Sentence entered May 21, 1986, Court of Common Pleas, Philadelphia County, Criminal Division at No. 83-08-1615.

COUNSEL

Gaele M. Barthold, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.

Robert R. Redmond, Philadelphia, for appellee.

Popovich, Johnson and Hester, JJ.

Author: Johnson

[ 364 Pa. Super. Page 403]

Following a non-jury trial, appellee was convicted of knowing or intentional possession of a controlled substance*fn1 and manufacture, delivery or possession with intent to manufacture or deliver a controlled substance.*fn2 Post-trial motions were denied and appellee was sentenced to a term of incarceration of 11 1/2 to 23 1/2 months followed by 10 years probation. As a condition of parole/probation appellee was ordered to complete at least one year in-patient

[ 364 Pa. Super. Page 404]

    drug treatment, unless the court ordered differently. The sentence was to run concurrently to the sentence appellant was already serving for robbery. After the Commonwealth filed a petition to reconsider and modify sentence the court vacated the sentence. The court later denied the Commonwealth's petition and re-imposed the above sentence. The Commonwealth appeals to this Court from the judgment of sentence and raises one issue:

DID THE SENTENCING COURT UNREASONABLY DEVIATE FROM THE SENTENCING GUIDELINES IN SENTENCING DEFENDANT, A PREVIOUSLY CONVICTED MURDERER AND ROBBER, TO A SENTENCE MORE THAN FOUR YEARS BELOW THE MINIMUM GUIDELINES FOR THE SALE OF HEROIN?

Before we can reach the merits of the issue of the appropriateness of the sentence we must determine whether there exists a substantial question that the sentence imposed is not appropriate under the sentencing code, 42 Pa.C.S. ยง 9701 et seq.. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987. If the Commonwealth demonstrates such a question then it can invoke this Court's jurisdiction and obtain appellate review of the trial court's exercise of discretion in sentencing a defendant. Tuladziecki, id.

In compliance with Pa.R.A.P. 2119(f), the Commonwealth sets forth in a separate section of its brief a concise statement of the reasons upon which it relies for allowance of appeal with respect to the discretionary aspects of the sentence. Pa.R.A.P. 2119(f). The Commonwealth states:

Defendant was convicted of selling heroin. Although the pre-sentence investigation predicted recidivism, and despite defendant's record (which includes convictions for murder, robbery and aggravated assault), the sentencing court imposed a sentence of 11 1/2 to 23 1/2 months, to run concurrently with an earlier sentence, and 10 years probation. Since defendant was already ...


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