Among the many issues to be considered by the Pennsylvania Supreme Court in this next year, one with low visibility but high impact is the question posed in this column’s title—when deciding what factors a judge may consider before imposing sentence, may a defendant’s history of arrests be considered? According to a recent Pennsylvania Superior Court ruling now accepted for review by the court, a decision somewhat under the radar because of it being pronounced in an unpublished decision, the answer is “yes.” What the Supreme Court should say is a resounding “no.”

What Was the Superior Court’s Holding?

A court may consider a defendant’s prior arrests, so long as it recognizes those arrests have not resulted in convictions. Here, the court noted that the previous “contacts” Travis John Berry has had with law enforcement did not contribute to the calculation of Berry’s prior record score. The court therefore acknowledged that these were not prior convictions. See 204 Pa. Code Section 303.4 (stating that prior record score “is based on the type and number of prior convictions”). Moreover, a record of prior police involvement goes to Berry’s amenability to rehabilitation, a factor the court must consider under 42 Pa.C.S.A. Section 9721(b). See Commonwealth v. Berry, 2022 Pa. Super. Unpub. LEXIS 2336, *12-13. The reasoning is wanting. Acknowledging what an arrest is “not” does not explain what it “is”; and there is no explanation of how “a record of police involvement” proves anything about amenability to rehabilitation.

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