J-S12004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY JOHNSTONE,
Appellant No. 1181 EDA 2013
Appeal from the Judgment of Sentence March 20, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011422-2012
BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.
DISSENTING MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 28, 2015
I respectfully dissent from the learned Majority’s resolution of the
sentencing issue raised herein. None of the cases relied upon by the
majority suggests that a trial court may not rely upon the contents of a pre-
sentence investigation report (“PSI”) in determining whether a defendant
has a prior crime of violence for purposes of application of § 9714, which, in
pertinent part, applies a mandatory minimum sentence of ten years
imprisonment when the defendant has been convicted of one prior crime of
violence.
The PSI herein reported that Appellant had a prior conviction for
robbery graded as a first-degree felony, which is a prior crime of violence
under § 9714. Defense counsel was asked at sentencing if he had received
the PSI, he said that he had, and defense counsel did not offer any
*
Former Justice specially assigned to the Superior Court.
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corrections to that document. N.T Sentencing, 3/20/13, at 2. The court
specifically articulated that, in determining that Appellant had a prior crime
of violence, it relied upon the PSI as well as the docket sheet of the case in
question.
In Commonwealth v. Boyd, 73 A.3d 1269 (Pa.Super. 2013), the
defendant averred that there was no evidentiary basis for imposition of a
fine under 42 Pa.C.S. § 9726(c). That provision states, “The court shall not
sentence a defendant to pay a fine unless it appears of record that: (1) the
defendant is or will be able to pay the fine; and (2) the fine will not prevent
the defendant from making restitution or reparation to the victim of the
crime.” We recognized that the issue pertained to the legality of the
defendant’s sentence and could not be waived. We then ruled that the PSI
provided a sufficient evidentiary basis for the trial court’s conclusion that the
defendant had the ability to pay the fine since the PSI outlined the
defendant’s financial resources. Herein, the PSI set forth that Appellant had
a conviction for a first-degree robbery, and it provided a sufficient
evidentiary basis for application of § 9714.
Additionally, the docket sheets of criminal action numbers are publicly
available. My review of the pertinent docket sheet establishes that,
Appellant pled guilty to robbery, two counts of burglary, and two counts of
possession of an instrument of crime. Two aggravated assault charges and
one count each of simple assault and reckless endangerment, among many
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other offenses, were nol prossed. Thus, the public docket sheet, especially
given that Appellant possessed an instrument of crime, supports that
Appellant did commit a first-degree felony robbery. 18 Pa.C.S. § 3701 (a)(i-
iii),(b)(1) (A first degree felony robbery is committed when a person, in the
course of committing a theft “(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate
serious bodily injury; [or] (iii) commits or threatens immediately to commit
any felony of the first or second degree[.])”
Finally, Appellant failed to avail himself at sentencing of the provisions
of § 9714(d), which specifically permits a defendant to challenge the
accuracy of the record of his prior convictions and demand that a hearing be
scheduled in order to determine if he committed a prior crime of violence, as
defined in § 9714. 42 Pa.C.S. § 9714 (b) (“If the offender or the attorney
for the Commonwealth contests the accuracy of the record, the court shall
schedule a hearing and direct the offender and the attorney for the
Commonwealth to submit evidence regarding the previous convictions of the
offender.”) Instead, Appellant made no corrections to the accuracy of the
PSI, which he acknowledged receiving and which outlined that he had a first-
degree felony robbery conviction. Additionally, Appellant made no comment
when the Commonwealth stated that this case involved a second strike,
when the trial court confirmed that this aggravated assault was a second
strike, and when the court indicated, “my hands are tied with the mandatory
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sentence. I’m sure you’re aware of that from your previous convictions.”
N.T. Sentencing, 3/20/13, at 1, 2, 8.
While I agree that one cannot waive the right to contest application of
a mandatory minimum, the mandatory minimum herein was correctly
applied. Appellant waived the right to argue the adequacy of the evidentiary
support for application of the mandatory minimum by not invoking the
procedure in § 9714(d), by failing to challenge the accuracy of the PSI, and
by failing to object to the three record instances when the second strike law
was invoked. The majority’s position is unsupported by the case law, and
elevates form over substance.
Hence, I respectfully dissent.
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