Pennsylvania Legal Update – Supreme Court Rules that Judges are NOT permitted to consider prior arrest without convictions against convicted defendants

The Pennsylvania Supreme Court (Com v. Berry) has overruled previous Superior Court decisions that permitted a judge to use a defendant’s prior arrest record at sentencing.  The Court specifically stated that an arrest alone is meaningless and irrelevant for sentencing purposes. In other words, a record history of an arrest can’t be admitted or considered by a court at sentencing or for most other purposes.   

 The PA Supreme Court opinion stated the following:

“Prior arrests shed no reliable light upon criminal propensity, cannot be used as evidence of bad character or for impeachment purposes, are not a relevant sentencing consideration, and have no probative value for establishing a defendant’s likelihood of recidivism. Nor are prior arrests a relevant consideration under the Sentencing Code…..”

According to the Court, arrests do not inform a sentencing court about ‘the gravity of the offense as it relates to the impact on the life of the victim and on the community’ under Section 9721(b) nor shed any light on the nature and circumstances of the crime for which the defendant is being sentenced under Section 9725. Prior arrests are also irrelevant to a consideration of the defendant’s ‘rehabilitative needs.’”

 Basically, allowing the sentencing court to fashion a sentence even in part upon a defendant’s prior arrest that resulted in neither conviction nor adjudication would distort the intent and operation of Pennsylvania’s sentencing scheme.   

What your criminal defense lawyer should do if you have been sentenced within the last 30 days

If you recently had a sentencing at which the Judge considered your arrest record at all and mentioned it as something they are allowed to consider, you should immediately ask for a resentencing by filing a Post-Sentence Motion within 10 days or do it nunc pro tunc if still within 30 days of sentencing or you still have a prior post-sentence motion pending.

What your criminal defense lawyer should do prior to sentencing:

1) object to the Pre-sentence inclusion of any mention of prior arrests;

2) make a motion to stop the Commonwealth’s introduction of a copy of your client’s criminal history report if it includes an arrest history;

3) make a motion to stop a any reference in a Commonwealth sentencing memo or at sentencing any history of arrests; and

4) depending on your forum, if there needs to be a hearing, you should likely ask that another judge hear the motion so as not to prejudice your Court with a client’s arrest history (which we know judges WILL consider once they know about it even if the law says they can’t).