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Commonwealth v. Green

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
LEN ALLEN GREEN, Appellant

Argued: December 11, 2013.

Appeal from the Judgment of Sentence of the Court of Common Pleas, Adams County, Criminal Division. No.: CP-01-CR-0001078-2012. Before CAMPBELL, J.

Steve Rice, Gettysburg, for appellant.

Adam J. Barr, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.

BEFORE: DONOHUE, J., OTT, J., and PLATT, J.[*] OPINION BY PLATT, J.

OPINION

Page 337

PLATT, J.

Appellant, Len Allen Green, appeals from the judgment of sentence entered following his negotiated guilty plea to one count of theft by unlawful taking.[1] We vacate the order of the trial court and remand for re-sentencing.

On February 25, 2013, Appellant entered a negotiated guilty plea to the above-stated offense. The charge stems from Appellant's theft of several personal property items, including jewelry, artwork, and china, with an approximate total value of $99,152.00, from Diane Giambalvo's residence on November 7, 2011. On April 18, 2013, the trial court sentenced Appellant to a term of not less than eleven and a half nor more than twenty-three months' partial confinement, followed by three years' probation. The trial court ordered Appellant to pay Diane Giambalvo $98,552.00 in restitution. In addition, at the Commonwealth's request and over Appellant's objection, the court ordered Appellant to disclose the location(s) where he disposed of the stolen items as a condition of probation.[2]

On April 19, 2013, Appellant filed a post-sentence motion challenging the probation condition, arguing that it is an unconstitutional infringement on his right against self-incrimination. ( See Trial Court Opinion, 7/25/13, at unnumbered page 1). The trial court denied the motion by order entered June 4, 2013. This timely appeal followed.[3]

Appellant raises one issue for our review:

I. Did the [trial] court err and abuse its discretion when it imposed a condition of probation that requires [Appellant] to disclose the location of items he took from the victim without appropriate Fifth Amendment safeguards?

(Appellant's Brief, at 4).

An appeal challenging the legality of a probation condition presents a question of law. See Commonwealth v. Wilson , 67 A.3d 736, 741 (Pa. 2013). Therefore, our scope of review is ...


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