Commonwealth v. Kerstetter , 398 Pa. Super. 202 ( 1990 )

DEL SOLE, Judge:

Edith G. Kerstetter, Appellant, was found guilty of delivery of a controlled substance. Post-verdict motions were filed and denied and Kerstetter was sentenced. She appeals from this judgment of sentence raising three issues. We find the first two to be without merit but we conclude that the Appellant’s third claim requires us to vacate the Judgment of Sentence and remand for resentencing.

Kerstetter was charged with possession with intent to deliver, delivery and conspiracy to deliver a controlled substance. On July 8, 1988, Kerstetter was formally arraigned. On August 17, 1988, the Commonwealth filed a motion to consolidate Kerstetter’s trial with the trial of Devin Murphy. Murphy was charged with several crimes relating to controlled substances in a separate information. The trial court granted the Commonwealth’s motion to consolidate over Kerstetter’s objection. Approximately seven months later the trial was held. Kerstetter was found not guilty on two of the charges presented, but guilty on one count of delivery of a controlled substance. Her co-defendant, Murphy, was ultimately found guilty of possession with intent to deliver and delivery. In addition to an order requiring her to pay fines and restitution, Kerstetter was sentenced to serve a 4 to 48 month period of incarceration.

The first issue raised by Kerstetter is whether the trial court erred when it granted the Commonwealth’s motion to consolidate. Kerstetter argues that the motion was untimely because it was filed ten days beyond the time limit set in the Pennsylvania Rules of Criminal Procedure and because the Commonwealth alleged no cause for the delay in filing the motion. In a related issue Kerstetter claims that the court’s decision permitting her case to be consolidated with her co-defendant’s was prejudicial to her right to a fair trial.

With regard to these claims we have reviewed the record and applicable case law. The trial court in its Opinion provides sound rationale for the decisions it made concerning consolidation. Finding no need to repeat or elaborate on the court’s analysis which correctly disposes of the first and second issues raised, we affirm.

Appellant’s remaining claims challenge the sentence imposed by the trial court. Among other allegations of error she asserts that the sentencing court relied on a pre-sentence report which contained factual errors. The accuracy of the report was challenged by counsel who addressed various statements contained in the report at the sentencing hearing. First counsel challenged the propriety of the prosecutor giving the probation department comments to be contained in the report. The assistant district attorney in this case relayed information contained in the report which indicated that Kerstetter refused to be fingerprinted in relation to an alleged death threat made by mail to the informant. She asserts that this information is inaccurate, that she was indeed fingerprinted and that she had no involvement whatsoever in the death threat.

Also contested were two observations made by the arresting officer which were contained in the report. The officer opined that Kerstetter acted in the role of a “master” over her co-defendant who occupied a “slave” position. Further the officer commented that Kerstetter “did not cooperate.” The accuracy of these observations was disputed by Kerstetter’s counsel who asserted that both statements were false. In addition, her counsel disputed the assistant district attorney’s statements in the pre-sentence report that Kerstetter’s actions required the Commonwealth to incur the expenses of producing an expert witness at trial. Kerstetter’s counsel informed the court that the witness was not necessary to his client’s case, but was called because of a decision made by the co-defendant’s counsel.

After presenting these objections to the court, a brief statement was made by Kerstetter and her father. The court then imposed sentence without setting forth to what extent, if any, it accepted as true any of the challenged statements set forth in the report. Nor did the court indicated that it was accepting the version of these statements offered by defense counsel.

The critical role played by pre-sentence reports in sentencing has recently been recognized by our supreme court. Noting the sentencing court’s utilization of pre-sentence reports, the supreme court has ruled that the need for trial courts to engage in an exhaustive statement of the reasons for the sentence imposed has been eliminated. As was stated in Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12 (1988):

We emphatically reject, therefore, interpretations of our law in this area which call for separate, written opinions embodying exegetical thought. Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of the relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ check lists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed.

The discretion afforded a sentencing court is premised upon a belief that the court is armed with a wealth of information particular to the individual defendant and in general with the legislature’s recommendations regarding sentencing contained in the guidelines. Precisely because of the wide latitude afforded sentencing courts and because we recognize the court’s ability to arrive at a balanced judgment when possessed of all the facts, it becomes imperative that the facts relied upon by the sentencing court be accurate. If we are to “presume” that when a sentencing court is in possession of a pre-sentence report its “weighing process took place in a meaningful fashion,” as Devers instructs, 519 Pa. at 102, 546 A.2d 12, then we must ensure that the court’s reliance has not misplaced on a report which contains erroneous information. Although we are not equipped to research or question the accuracy of the report, nor should we be, when particular statements of facts contained in the report are challenged as false by a defendant at sentencing, the sentencing court should make a determination as to which version it accepts as the facts.

It has been held that it is sufficient to render a sentence invalid if it reasonably appears from the record that the sentencing court relied in whole or in part upon an erroneous consideration. Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977). However, if the pre-sentence report relied upon by the court is challenged as inaccurate by the defendant and the court fails to indicate which facts it finds to be true, on appeal we are unable to determine whether the court relied in whole or in part upon an erroneous consideration. Where, as here, the accuracy of the pre-sentence report has been challenged at the sentencing hearing, the sentencing court cannot solely rely on the pre-sentence report to satisfy the record requirements of its sentencing function. Thus, whenever the information contained in the pre-sentence report is challenged by the defendant at sentencing, it is incumbent upon the court to engage in a fact finding function to determine the truth or falsity of the statements contained in the report. The reliance sentencing courts enjoy regarding pre-sentence reports in the sentencing process presumes their accuracy. When it is alleged that the reports contain untruths, it is imperative that the sentencing court make the appropriate determination on the record of the factual basis for the sentence imposed. As was said in Commonwealth v. Martin, 466 Pa. 118, 131— 132, 351 A.2d 650 (1976):

It is true that the sentence imposed is normally left undisturbed on appeal because the trial court is in a far better position to weigh the factors involved in such a determination. However, we have held that the court’s discretion must be exercised within certain procedural limits, including the consideration of sufficient and accurate information.

In conclusion we find it necessary to vacate the judgment of sentence in this case and remand the matter to the trial court for resentencing. As we have stated, a pre-sentence report is of enormous importance in providing the court with relevant information for consideration in sentencing. Because the report in this case, which detailed information concerning Kerstetter’s individual character and facts particular to her case, was alleged to contain falsehoods, the sentencing court must determine which version of the facts is accurate and then proceed to sentence accordingly. We direct the court on remand to indicate whether it accepts as true the facts contained in the pre-sentence report or whether other descriptions of the facts are accurate. Based upon the facts found by the court, a sentence should be imposed.

Judgment of Sentence vacated. Case remanded for re-sentencing. Jurisdiction relinquished.

MONTEMURO, J., files a concurring opinion.