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COMMONWEALTH PENNSYLVANIA v. DANIEL ROGERS (08/25/89)

filed: August 25, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL ROGERS, JR., APPELLANT



Appeal from the Judgment of Sentence of June 2, 1988 in the Court of Common Pleas of York County, Criminal Division, at No. 2496 CA 1986.

COUNSEL

Robert Glessner, York, for appellant.

H. Stanley Rebert, Dist. Atty., York, for Com., appellee.

Brosky, Beck and Hoffman, JJ.

Author: Hoffman

[ 386 Pa. Super. Page 477]

This appeal is from the judgment of sentence for indecent assault. Appellant contends that the sentence imposed was an abuse of discretion because (1) the court failed to state on the record adequate reasons for the sentence imposed; (2) the probation department's pre-sentence report was biased;

[ 386 Pa. Super. Page 478]

    and (3) the ten-month minimum sentence was inappropriate. For the reasons that follow, we affirm.

Appellant was charged with the indecent assault of a six-year-old girl. On January 14, 1987, a jury found appellant guilty of indecent assault. Following post-verdict motions, appellant was granted a new trial. Appellant was again tried before a jury and, on December 15, 1987, was again found guilty. Post-verdict motions were filed and denied and, on June 2, 1988 appellant was sentenced to a ten-to-twenty-three-month term of imprisonment. Appellant's Motion for Reconsideration of Sentence was filed and denied, and this appeal followed.

We note preliminarily that because appellant does not challenge the legality of his sentence, his right to appeal is governed by 42 Pa.C.S.A. ยง 9781(b). The requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) therefore apply. Appellant has failed to include in his brief "a concise statement of the reasons relied upon for allowance of appeal" as required by Rule 2119(f) and Tuladziecki. In Commonwealth v. Krum, 367 Pa. Super. 511, 533 A.2d 134 (1987) (en banc), however, this Court held that an appellant's failure to comply with Rule 2119(f) and Tuladziecki, if not objected to by the appellee, is a waivable procedural violation. Id., 367 Pa. Superior Ct. at 519, 533 A.2d at 138. Here, the Commonwealth has failed to object to the defect in appellant's brief; accordingly, we may proceed to "determine, in [our] own discretion, whether there is a substantial issue requiring [us] to review the discretionary aspects of the sentence imposed by the trial court." Id.*fn1

[ 386 Pa. Super. Page 479]

Appellant's first claim is that the sentence imposed was an abuse of discretion because the court failed to state on the record adequate reasons for the sentence imposed. This claim is waived. Issues regarding the propriety of a sentence are waived unless they are raised before the sentencing court in a motion to modify the sentence. See, e.g., Commonwealth v. Krum, supra, 367 Pa. Superior Ct. at 515-16, 533 A.2d at 135. Here, appellant failed to set forth in his motion for reconsideration of sentence a specific claim concerning the adequacy of the court's statement of its reasons for imposing sentence. See R.R. at 13-14. Accordingly, appellant has failed to preserve this claim for appellate review.

Appellant's next claim is that the sentence imposed was an abuse of discretion because the trial court relied on a biased pre-sentencing report. Initially, we note that we are satisfied that this claim presents a substantial question for our review. In Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), our Supreme Court ...


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