Commonwealth v. Prestidge

539 A.2d 439, 372 Pa. Super. 282, 1988 Pa. Super. LEXIS 536

• Court: Supreme Court of Pennsylvania
• Decided: March 7, 1988
• Docket: 1748
• Status: Published

Opinions

DEL SOLE, Judge:

This is an appeal from the judgment of sentence of May 22,1987, in which appellant was sentenced for two consecutive terms of one and one-half years to four years for two counts of Theft by Deception, 18 P.S. § 3922. Appellant raises four issues for our consideration in this appeal. Prior to addressing them, a brief recital of the facts is in order.

The Information charged that on August 18, 1986, Appellant obtained $6,000.00 from John Short. To secure the money, Appellant presented Mr. Short with a forged letter from Dr. John Oliver Nelson, in which Nelson guaranteed to repay the loan. On the same day Appellant obtained an additional $18,000.00 from Mr. Short, promising to invest the funds in the purchase of a home. He told Mr. Short that he intended to sell it quickly for an immediate profit and repay him his investment plus a split of the profit. Needless to say, no portion of the money was repaid.

This appeal involves a challenge to the legality of the sentence as well as the discretionary aspect of the sentence. The question of whether the two counts of theft should have merged for sentencing purposes, relates to the legal aspects. A two-pronged test for determining the merger of offenses has been adopted by our appellate courts:

[t]o determine whether merger should occur, a court must first determine whether the separate statutory offenses arose out of the same criminal act, transaction or episode. When courts decide under the merger doctrine that two crimes “necessarily involve” one another, it does not always mean that all the elements of one crime are included in the other. It means that on the facts of the case the two crimes were so intimately bound up in the same wrongful act that as a practical matter, proof of one crime necessarily proves the other, so that they must be treated as the same offense. Commonwealth v. Williams, 344 Pa.Super. 108, 127, 496 A.2d 31, 40 [1985]

sit * * * * #

The test for merger, as stated above, is a “flexible fact-based tool for determining how many offenses against the Commonwealth have actually been committed____ (The) question of merger will often turn on an appraisal of the precise facts of the case.” Commonwealth v. Williams, supra, 344 Pa.Superior Ct. at 143, 496 A.2d at 50.

Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987).

Appellant contends that the two counts of Theft are each part of a single continuous act since the victim relied on the forged note, which attested to guarantee the loan, before giving him both sums of money. Appellant overlooks that the crucial factor herein is that he approached the victim on two separate occasions and received money both times. Of course the elements of both offenses are the same, however, the trial court did not err in refusing to merge the two counts of theft for sentencing purposes, as each was the result of a separate factual situation.

The second issue Appellant raises is whether the trial court erred when it included Appellant’s conviction for a Canadian robbery in the calculation of his prior record score. President Judge Williams used a prior record score of three (3) based upon this conviction. While there is no specific section of the Sentencing Code that controls this question directly, out-of-state offenses are included in determining a defendant’s prior record score, and are governed by application of Pennsylvania statutory offense classifications and definitions. It follows from this analysis, that a conviction rendered in a foreign country, especially one which enjoys a judicial system similar to ours, should also be included. Therefore the trial court did not err when it included Appellant’s Canadian conviction for robbery.

Appellant’s third issue challenges the trial court’s imposition of sentence in the aggravated range. This contention concerns a discretionary aspect of sentencing. 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), however, this Court, sitting en banc, recently 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 134 at 138. Here, the Commonwealth has not objected to the Rule 2119(f) defect in appellant’s brief. Accordingly, the Commonwealth has waived any claim based on the absence of such a statement. We must therefore 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. Commonwealth v. Krum, supra (footnote omitted).

Specifically, Appellant claims that imposing sentence in the aggravated range was an abuse of discretion because the trial court only focused on the violation of trust between Appellant and Dr. Nelson, and the age of the victim,¹ but hardly considered any of the mitigating circumstances. We find this to be a substantial question as to whether the sentencing court erroneously applied the guidelines, and therefore will review the question. Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987).

[A] sentencing judge may consider any legal factor in deciding whether a defendant should be sentenced within the aggravated range. Second, in order to be adequate, the sentencing judge’s reasons for sentencing within the aggravated range must reflect this consideration. Finally, the sentencing judge’s decision regarding the aggravation of a sentence will not be disturbed absent a manifest abuse of discretion.

Commonwealth v. Duffy, 341 Pa.Super. 217, 224, 491 A.2d 230, 233 (1985).

Keeping these principles in mind we turn to Appellant’s assertion that the trial court should not have sentenced him in the aggravated range. Our review of the Sentencing Transcript reveals the legal factors and elaborate reasons upon which President Judge Williams based Appellant’s sentence. Appellant’s assertion that the Judge simply “brushed aside” his poor educational background, poor family history, drug and alcohol problems, and the fact that this was a non-violent crime is totally meritless. The Judge’s decision to sentence Appellant in the aggravated range was one in which he balanced the needs of the community to be protected against crimes of this nature and Appellant’s need for rehabilitation. Since the sentence imposed herein is within the statutory limits, and is not manifestly excessive so as to inflict too severe a punishment, we can find no abuse of the trial court’s discretion. Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982).

Finally, Appellant argues that the probation officer responsible for preparing his presentence report should have been in attendance at the sentencing proceedings so that he could be questioned regarding its contents. There is no merit to this contention. Appellant was presented with a presentence report prior to sentencing and was afforded the opportunity to contest any portion of the report with which he disagreed. Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1976). Since he had the benefit of all the safeguards required to insure a fair sentencing, the presence of the preparer of the presentence report was superfluous.

Judgment of sentence affirmed.

BROSKY, J., files a concurring opinion. HOFFMAN, J., files a concurring and dissenting opinion.

1 . We note that Appellant has not challenged the constitutionality of the sentencing guideline. Accordingly, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) is inapplicable.