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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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