Opinion
September 11, 1972.
November 16, 1972.
Criminal Law — Sentence — Alleged reliance of trial court upon an earlier conviction which had since been reversed — Record of many other convictions — Harmless error.
1. In this post-conviction proceeding, defendant contended that his sentence should be reconsidered because the court relied upon an earlier conviction which had since been reversed. In addition to the one prior conviction, defendant had a record of nineteen other convictions.
It was Held that defendant's extensive record precluded a finding that the sentence imposed was substantially predicated on the conviction which had been reversed and that this was a case of harmless error.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and PACKEL, JJ.
Appeal, No. 1687, Oct. T., 1971, from orders of Court of Common Pleas of Northampton County, June T., 1967, No. 127 in case of Commonwealth of Pennsylvania v. Walter P. Krenkowitz. Orders affirmed.
Petition for post-conviction relief. Before PALMER, P.J.
Order entered dismissing petition. Defendant appealed.
Philip D. Lauer, for appellant.
Allan B. Goodman, Assistant District Attorney, and Charles H. Spaziani, District Attorney, for Commonwealth, appellee.
Submitted September 11, 1972.
Appellant contends that his 1967 sentence should be reconsidered because the sentencing judge relied upon a 1963 conviction, which has since been reversed.
"For almost three decades in Pennsylvania it has been a well established and recognized rule of law that evidence of prior offenses committed by the defendant . . . is admissible . . . solely for the purpose of enabling the jury to decide what penalty should be imposed on the defendant." Commonwealth v. Thompson, 389 Pa. 382, 399, 133 A.2d 207 (1957), cert. den. 355 U.S. 849; Commonwealth ex rel. Sullivan v. Ashe, 325 Pa. 305, 188 A. 841 (1937), aff'd 302 U.S. 51; Commonwealth ex rel. Gouch v. Myers, 196 Pa. Super. 285, 288, 175 A.2d 158 (1961); Commonwealth ex rel. Wildrick v. Myers, 199 Pa. Super. 85, 88, 184 A.2d 158 (1962). Where a defendant is sentenced, however, on the basis of erroneous assumptions with respect to his criminal record, the defendant may be denied due process of law. Townsend v. Burke, 334 U.S. 736 (1948).
In Townsend v. Burke, supra, appellant was not represented by counsel at sentencing. The sentencing judge mistakenly believed that the defendant had five prior convictions. In reality, the defendant only had two prior convictions. The Supreme Court held: "It is the careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process." 344 U.S. 736, 741. Unlike Townsend, the appellant in the instant matter was represented by counsel at sentencing.
In addition to the 1963 conviction, appellant had nineteen other convictions when he was sentenced in 1967. The appellant's extensive record precludes a finding that the sentence imposed herein was substantially predicated on the 1963 conviction. This is clearly a case of harmless error. United States ex rel. Cottrell v. Rundle, 299 F. Supp. 1028 (1969).
In Rundle, supra, the relator alleged that the trial judge erroneously believed that the homicide victim had been assaulted by the relator on a prior occasion. The court ruled: "Assuming arguendo that the relator is correct, this does not rise to constitutional error. . . . The relator had numerous convictions for crimes of violence. Having demonstrated a propensity for inflicting bodily harm, the trial court was indeed justified in imposing the maximum sentence, authorized by statute." 299 F. Supp. 1028, 1030.
For the aforementioned reasons, the lower court decision is affirmed.