Commonwealth v. Tomasso ( 1984 )

OPINION OF THE COURT

PER CURIAM.

Our review of this record reveals that the three issues presented by the Commonwealth, which a majority of the Superior Court panel, 311 Pa.Super. 103, 457 A.2d 514, failed to consider on grounds of waiver, were sufficiently presented to the sentencing judge in a timely manner. See Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978) (sentence properly challenged if the propriety of the sentence is raised either at the sentencing hearing or in a motion to modify sentence). However, the assertions in the briefs and record that the sentence was based in part on factual misapprehensions amount to nothing more than an assertion that the sentence was based in part on an inaccurate factual record. The record itself refutes this argument. There were no factual misapprehensions by the sentencing judge. Since the Commonwealth has conceded it did not, and could not, raise the issue of whether this particular sentence, outside the sentencing guidelines, was unreasonably lenient, the decision of Superior Court must be affirmed.

LARSEN, J., files a dissenting opinion.