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227 Pa. Super. 291

Commonwealth v. Warner

Superior Court of Pennsylvania

Decided April 3, 1974

Superior Court of Pennsylvania · decided 1974-04-03

Cited by 4 later decisions — most recently October 1983

4 state decisions

Relies on Smith v. Crouse · Fisher v. United States · Etchieson v. Texas

Good law ✅— No negative treatment on recordhow we know

Decided 1974-04-03

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¶1Opinion by

Yan der Yoort, J.,

¶2This is an appeal from the Judgment of sentence imposed by the Court of Common Pleas, Criminal Division, of York County, after the defendant’s entry of a plea of nolo contendere to the charges of burglary, larceny, receiving stolen goods, resisting arrest, and assault and battery. Defendant was sentenced to undergo imprisonment for a period of time not less than five (5) years nor more than ten (10) years, sentence to begin at the expiration of the sentence which defendant was currently serving. The appeal charges that the sentence was excessive in view of all the circumstances of the case.

¶3The Supreme Court of Pennsylvania has said that, “[i]f the sentence imposed is within statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment.” Commonwealth v. Person, 450 Pa. 1, 4-5, 297 A. 2d 460 (1972). See also Commonwealth v. Wrona, 442 Pa. 201, 275 A. 2d 78 (1971); Commonwealth v. Pouls, 198 Pa. Superior Ct. 595, 182 A. 2d 261 (1962); Commonwealth v. Downer, 161 Pa. Superior Ct. 339, 53 A. 2d 897 (1947). We ourselves have stated that we have the power to modify an obviously excessive sentence, Commonwealth v. Zelnick, 202 Pa. Superior Ct. 129, 195 A. 2d 171 (1963); cert. den. 377 U.S. 1006, 12 L. Ed. 2d 1054, 84 S. Ct. 1943 (1964); Commonwealth v. Bilinski, 190 Pa. Superior Ct. 401, 154 A. 2d 322 (1959), though we have rarely utilized that power, preferring instead to rely on the good judgment of the trial judge. In the case before this court, the sentence imposed, five (5) to ten (10) years for burglary, is within the statutory limits. Act of June 24,1939, P. L. 872, §901,18 P.S. §4901. The fact that appellant nearly lost the use of his arm as a result of his crime is unfortunate, but such injury was within the scope of the risk that appellant assumed when he engaged in the illegal activity. This *293was not appellant’s first offense, nor were the circumstances of this crime extenuating. Accordingly, the sentence of the lower court will be sustained.

¶4Judgment of sentence affirmed.

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