The fact that a defendant is guilty of prior criminal conduct for which he escaped prosecution has long been an accepted sentencing consideration. However, this type of conduct can be used as a sentencing factor only under tightly prescribed circumstances when there is evidentiary proof linking the defendant to the conduct. But, when a defendant has been exonerated in the legal system, either by a jury or on constitutional grounds, with respect to a criminal act, that act cannot be used to enhance a sentence. This is the case of Commonwealth v. Smithton from 1993.
In Commonwealth v. Frank of 1990, a therapist was convicted of sexual abuse of an adolescent male patient. At trial, witnesses testified that the defendant had initiated sexual contact with them during counseling sessions. The sentencing court, in concluding that the defendant was not amenable to rehabilitation, indicated that the testimony of these witnesses had been weighed. The defendant appealed and stated that the sentencing court improperly considered uncharged and unproven criminal activity when fashioning it sentence. The Superior Court held that the allegation did not raise a substantial question because a sentencing court "may consider uncharged criminal activity in determining the appropriate sentence." This is a tough case and one that not many Lehigh County criminal lawyers like.
In Commonwealth v. Palmer of 1983, the defendant challenge the sentencing court's consideration of the defendant's admission that he had "cased" a bank. The Superior Court rejected his challenge, stating "a court may consider criminal activity or preparation for crimes as factors in sentencing even though no arrest or conviction resulted". The same result was reached in Commonwealth v. Vernille of 1980. In that case, the sentencing court was aware of the defendant's participation in other uncharged criminal conduct,and the defendant admitted to most of the facts constituting that conduct. When imposing it sentence, the sentencing court unquestionably had relied upon that uncharged conduct. The Superior Court upheld the sentence, observing that "broad discretion is reposed in the judge to receive relevant information to make the determination of sentence" The court continued, "it was not improper for the sentencing judge to consider appellants alleged involvement in other unlawful activity for which she was not charged tried or convicted."