Appeal from the Judgment of Sentence in the Court of Common Pleas of Westmoreland County, Criminal Division, No. 1849 C. of 1985
Bernard T. McArdle, Greensburg, for appellant.
John W. Peck, II, Assistant District Attorney, Arnold, for Com., appellee.
Rowley, Del Sole and Tamilia, JJ. Rowley, J., concurs and dissents with statement.
[ 368 Pa. Super. Page 232]
This is an appeal from judgment of sentence entered after a jury convicted appellant of robbery*fn1 and theft.*fn2 The charges arose from the robbery of a Hardees restaurant on August 10, 1985. A sentence of thirty six (36) to seventy-two (72) months imprisonment was imposed.*fn3 This timely appeal followed the denial of appellant's motion to modify sentence.
Appellant's only contention on appeal is that the court abused its discretion in sentencing appellant outside of the sentencing guidelines without adequately stating its reasons for doing so. The issue raised by appellant challenges the discretionary aspects of the sentence rather than the legality of the sentence and thus the appeal must be perfected as explained in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).
[ 368 Pa. Super. Page 233]
In Tuladziecki, the Supreme Court noted that 42 Pa.C.S.A. § 9781(b) provides for the filing of a petition for allowance of appeal of the discretionary aspects of sentencing. The procedural rules are then set forth indicating that Pa.R.A.P. 902 provides for the notice of appeal to operate as the petition for allowance required under the statute. Pa.R.A.P. 2116(b) and Pa.R.A.P. 2119(f) are also discussed with the language of Rule 2119(f) establishing the further action required.
Pa.R.A.P. 2119(f) provides:
(f) An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.
Commonwealth v. Thomas, 363 Pa. Super. 348, 354, 526 A.2d 380, 382-83 (1987).
Also, as we stated in Commonwealth v. Muller, 364 Pa. Super. 346, ...