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COMMONWEALTH PENNSYLVANIA v. ROBERT W. BRAUER (03/11/88)

filed: March 11, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
ROBERT W. BRAUER



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County at No. 5536-86.

COUNSEL

Ann A. Osborne, Assistant District Attorney, Radnor, for Com., appellant.

Vincent Iannello, Jr., Media, for appellee.

Cavanaugh, Rowley and Popovich, JJ. Rowley, J., concurs in the result.

Author: Popovich

[ 372 Pa. Super. Page 9]

This is an appeal from the judgment of the Court of Common Pleas of Delaware County by the Commonwealth/appellant placing Robert Brauer/appellee on probation without a verdict for violating 75 Pa.C.S. § 3731 (Driving Under the Influence of Alcohol or a Controlled Substance).*fn1 We reverse.

The facts are not in dispute and reveal that on July 30, 1986, the appellee was travelling on East 10th Street in Marcus Hook, Pennsylvania. He was stopped by the police and asked to produce a driver's license and owner's card. A computer check of the appellee's license indicated that it was suspended.

After speaking with the appellee and detecting an odor of alcohol on his breath, the police officer placed him under arrest for driving under the influence of alcohol or controlled substance and driving with a suspended license. A charge of possession of a controlled substance was added pursuant to an inventory search of the vehicle which disclosed one $20.00 bag of PCP (Phencyclidine). A complaint listing the aforementioned charges, save for the charge of driving with a suspended license which was later withdrawn, was filed on July 1, 1986.

Approximately one week later, the appellee was arrested for selling drugs to an undercover state trooper. Thereafter, on May 20, 1987, a pre-trial hearing for a consolidated disposition of both cases under Section 17 of The Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. § 780-117) took place. At that time, the appellee presented the

[ 372 Pa. Super. Page 10]

    testimony of Barbara Van Lenten, an addiction counselor and psychiatric social worker. Her evaluation of the appellee lead her to conclude that he was a "poly-substance abuser". As a result thereof, she recommended that the court place the appellee in a drug treatment program for sixty (60) days of in-patient treatment with intensive out-patient follow-up.

The Commonwealth objected to this disposition of the drunken driving charge, pointing out to the court that the penalty for driving under the influence was not discretionary, but, rather, it was mandated by statute, i.e., it required imprisonment and not probation. Nonetheless, the court granted the appellee's motion for probation without verdict and entered the order from which this appeal is taken.

The sole issue raised for our consideration is whether the court below erred in placing the appellee on probation without verdict for the offense of driving while under the influence of alcohol or controlled substance.

In Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986) our Supreme Court addressed the question of whether the penalty phase of § 3731 was mandatory or discretionary, and, in that context, whether the legislature had the authority to remove from the court the right to suspend sentence and impose probation. In concluding that the Municipal Court was correct in vacating its original sentence of one year's probation and imposing in its stead a sentence of 48 hours' to 11 1/2 months' ...


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