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COMMONWEALTH PENNSYLVANIA v. GREGORY S. ARTHUR (05/10/89)

filed: May 10, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
GREGORY S. ARTHUR, APPELLANT



Appeal from the Judgment of Sentence entered April 20, 1988 in the Court of Common Pleas of Westmoreland County, Criminal Division, at No. 136 C 1987.

COUNSEL

Gary F. Selway, Greensburg, for appellant.

William C. Gallishen, Assistant District Attorney, Greensburg, for Com., appellee.

Rowley, Del Sole and Montgomery, JJ.

Author: Del Sole

[ 384 Pa. Super. Page 615]

In this appeal we are asked to review the propriety of a sentence directing the surrender and destruction of a firearms collection which was not used in the commission of the crimes for which Appellant was convicted. We reverse.

Appellant was sentenced to a total of seven (7) years probation, fined seven-hundred and fifty dollars, ($750.00), with additional costs, and ordered to surrender for destruction his gun collection, following a conviction for corrupting minors, reckless endangerment of another person, and criminal mischief.

The conviction resulted from an incident on Halloween in which Appellant stopped a group of boys near his home and after talking with them produced a .44 caliber pistol, waived the pistol at the boys and specifically pointed it at one boy. Then Appellant showed the boys how to place dog feces in a paper bag, make a wick, and light it. After showing them this "trick", Appellant once again waved the pistol at the

[ 384 Pa. Super. Page 616]

    boys and then pointed the pistol specifically at a second boy's head.

After a jury trial and sentencing, a petition to modify sentence was filed by Appellant's new attorney. In this petition, Appellant stated that he was indigent and "in need of the proceeds for the sale of said firearm [sic]," and therefore, he requested that the part of the sentencing order providing for the "confiscation and destruction of a firearm [sic]" be modified.

On appeal, Appellant claims through new counsel, that his sentence, which results in the forfeiture of his firearms collection, was illegal and unconstitutional under Article 1, Subsection 9 of the Pennsylvania Constitution. He also contends that despite his failure to raise this issue in his petition to modify sentence, it has not been waived.

It is well settled that a challenge to the legality of a sentence can never be waived. Commonwealth v. Eliason, 353 Pa. Super. 321, 509 A.2d 1296, 1298, n. 3 (1986); Commonwealth v. Cooke, 342 Pa. Super. 58, 492 A.2d 63 (1985). However, we need not decide if the confiscation of personal property, not contraband, without compensation is such an illegal, unwaivable sentence, which violates the Appellant's due process rights under the Pennsylvania Constitution. Instead we accept Appellant's alternative ...


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