Com. v. Theisen, C.

• Court: Superior Court of Pennsylvania
• Decided: August 4, 2017
• Docket: Com. v. Theisen, C. No. 703 WDA 2016
• Status: Unpublished

Opinion

J-S39005-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, ¦ IN THE SUPERIOR COURT OF ¦ PENNSYLVANIA Appellee ¦ ¦ v. ¦ ¦ CHARLES THEISEN, ¦ ¦ Appellant ¦ No. 703 WDA 2016

Appeal from the Judgment of Sentence January 12, 2016 in the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012533-2014 CP-02-CR-0013588-2014 CP-02-CR-0014997-2014

BEFORE: BENDER, P.J.E., BOWES, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.: FILED August 4, 2017

I join the Majority Memorandum. As to Appellant’s final issue, the

Majority correctly holds that 42 Pa.C.S. § 9738 is utterly irrelevant to the

question of whether Detective Mercurio’s testimony at sentencing was

permissible, and that Appellant cites to no other authority that would

prohibit the testimony. Majority Memorandum at 16.

I write separately to note that Appellant has ignored authority that is

contrary to his position.

[P]rior to imposing sentence [a] sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.

*Retired Senior Judge assigned to the Superior Court. J-S39005-17

Nevertheless, the discretion of a sentencing judge is not unfettered; a defendant has the right to minimal safeguards to ensure that the sentencing court does not rely on factually erroneous information, and any sentence predicated on such false assumptions is inimicable [sic] to the concept of due process. Obviously, the probability of receiving accurate pre- sentence information is considerably enhanced when the defendant has an opportunity to review and dispute the facts and allegations available to the sentencing judge.

Commonwealth v. Rhodes, 990 A.2d 732, 746 (Pa. Super. 2009) (internal

citations and quotation marks omitted).

Here, Appellant was present when the detective spoke of his lack of

remorse, and thus had the opportunity to hear and dispute the allegations.

Given that lack of remorse is an appropriate sentencing consideration, see,

e.g., Commonwealth v. Begley, 780 A.2d 605, 644 (Pa. 2001) (noting

lack of remorse, as a sign of the defendant’s character, is an appropriate

consideration for sentencing outside of the guidelines), his argument that

Detective Mercurio’s testimony was improper is devoid of merit. Accord

Commonwealth v. duPont, 730 A.2d 970, 986 (Pa. Super. 1999) (holding

trial court appropriately considered hearsay statements in letter from police

chief of the neighborhood in which the crimes occurred, as impact on the

community is an appropriate sentencing consideration).

Judge Bowes joins this concurring memorandum.

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