# Commonwealth v. P.L.S. > Superior Court of Pennsylvania · February 2, 2006 · 2006 Pa. Super. 20 URL: https://www.frixlaw.com/law-library/cases/4962275 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. P.L.S. - **Court:** Superior Court of Pennsylvania - **Decided:** February 2, 2006 - **Citations:** 2006 Pa. Super. 20; 894 A.2d 120; 2006 Pa. Super. LEXIS 46 - **Precedential status:** Published - **Opinion:** Concurrence by Bender - **Judges:** Bender, Bowes, Joyce - **Cited by:** 121 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4962275 ## How later opinions describe it (automated extraction) - holding, in the alternative, that even if a trial court improperly considered uncharged conduct as a sentencing factor, an upward departure sentence was not an abuse of discretion because the court offered significant other support for the sentence including that the “Appellan… - holding that a sentencing court is permitted to consider prior conduct that did not result in prosecution or conviction so long as the legal system did not exonerate the defendant for that conduct, there is evidentiary support for the conduct in the record, and the trial court… - explaining that the trial court may consider “convictions that not counted in the defendant’s prior record score (PRS) when crafting a sentence” and noting that “the sentencing guidelines essentially mandate such consideration when a prior record score inadequately reflects a … - holding that a claim that the sentencing court considered impermissible factors raises a substantial question - finding that even if the trial court considered an inappropriate factor at sentencing, “the court offered - 19 - J-A30037-16 significant other support for sentencing in excess of the guidelines in this case.” ## Opinion text Concurring opinion by BENDER, J.: ¶ 1 I concur in the result reached by the Majority. However, I write separately to express my hesitation and concern with respect to the manner of usage by the sentencing court of the information about Appellant’s niece and nephew. In addressing Appellant at sentencing, the court emphasized that the SOAB investigation “uncover[ed] that there were nephews and nieces that you sexually abused, that the statue [sic] of limitations had run, which leaves in essence three victims” (i.e., the victim in the instant case and the niece and nephew). N.T. Sentencing, 6/5/02, at 19, 20 (emphasis added). Accordingly, the sentencing court announced: “The reason for applying that maximum sentence is that I believe because there were two other victims of statutory limitations had run [sic] and because of your problems that you are a danger to society.” Id. at 23 (emphasis added). This language indicates more than mere consideration of the information as an aggravating factor in imposing sentence for the purpose of protecting the public. It reveals that the court imposed punishment specifically to vindicate the abuse inflicted many years prior on Appellant’s niece and nephew. ¶ 2 The Majority likens the instant case to Commonwealth v. Frank, 395 Pa.Super. 412 , 577 A.2d 609 (1990); Commonwealth v. Palmer, 315 Pa.Super. 601 , 462 A.2d 755 (1983); and Commonwealth v. Vernille, 275 Pa.Super. 263 , 418 A.2d 713 (1980). In these cases, we stated that “[a] court may consider criminal activity or preparation for crimes as factors in sentencing even though no arrest or conviction resulted.” Palmer, 462 A.2d at 762 . In Vernille , for example, we concluded that the court did not err by considering uncharged conduct as a reflection of the appellant’s character and as an indication that the public must be protected from the appellant’s history of involvement in cases of defective titles and car thefts. Id. ¶ 3 Similarly, in Frank , we examined the merits of the appellant’s complaint that the sentencing court considered uncharged and unproven conduct in imposing sentence. Frank, 577 A.2d at 622 n. 7. We *135 concluded that the trial court did not abuse its discretion because “during the sentencing proceeding, [the trial court] specifically stated that it was not considering the evidence presented during the trial concerning other criminal acts on the part of the appellant in formulating appellant's sentence.” Id. So, in stark contrast to the instant case, the sentencing court in Frank specifically indicated that it was not considering the uncharged conduct in imposing the sentence. Id. ¶ 4 In sum, the courts in Vernille; Palmer , and Frank properly considered uncharged conduct in imposing sentence, whereas the sentencing court in the instant case expressly announced that it was imposing the maximum sentence because there were two additional victims for whom the statute of limitations had run, thereby imposing punishment for uncharged conduct. Indeed, as the majority notes, “it is not improper for a court to consider a defendant’s prior arrests which did not result in conviction, as long as the court recognizes the defendant had not been convicted of the charges.” Commonwealth v. Fries, 362 Pa.Super. 163 , 523 A.2d 1134, 1136 (1987) (emphasis added). The express language of the sentencing court reveals that it did not recognize that Appellant had not been convicted of the charges, as the court imposed sentence to vindicate those victims and punish Appellant for his abuse of those victims because the statute of limitations had run. ¶ 5 I do not intend that admissions or other information obtained through the SOAB investigation be excluded from consideration in imposing sentence. Indeed, Megan’s Law provides that “[i]n all cases where the [SOAB] has performed an assessment pursuant to this section, copies of the report shall be provided to the agency preparing the presentence investigation.” 42 Pa.C.S. § 9795.4(f). Thus, Megan’s Law contemplates that information from the SOAB investigation may properly find its way into the PSI report and, accordingly, into the hands of the sentencing judge. However, the comments made by the sentencing courts in Vernille; Palmer, and Frank satisfied us that the courts properly considered the uncharged conduct in sentencing. Here, in my opinion, however, an examination of the sentencing court’s comments reveals that the court went beyond considering admissions of molestation in the distant past as factors relevant to Appellant’s character or protection of the public. ¶ 6 In any event, I do agree with the Majority that other aggravating circumstances existed in this case, specifically with regard to the sexual abuse endured over a period of time by the victim, S.McK.; therefore, I would agree that it is not necessary to remand for resentencing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4962275. Public record. Not legal advice.