Superior Court - 3/20/08 - COMMONWEALTH OF PENNSYLVANIA v. RUSSELL L. DIAMOND, JR.

COMMONWEALTH OF PENNSYLVANIA v. RUSSELL L. DIAMOND, JR.
No. 1698 MDA 2008 2008 PA Super 45 Atlantic: n/a Filed: 3/20/2008
Appeal from the Judgment of Sentence entered on August 30, 2006, in the Court of Common Pleas of Lebanon County, Criminal Division, at No(s). CP-38-CR-0001861-2005
Before: LALLY-GREEN, GANTMAN, JJ., and McEWEN, P.J.E.
Opinion by: LALLY-GREEN, J.
Appellant, the Commonwealth of Pennsylvania, appeals from the judgment of sentence entered on August 30, 2006, upon the conviction of Appellee Russell L. Diamond, Jr. (“Diamond”). We vacate and remand.


The Commonwealth raises two issues on appeal. In reverse order,they are:

1. Whether the trial court erred/abused its discretion by refusing to apply the mandatory five (5) year prison sentence required by 42 Pa.C.S.A. § 9712, since Appellee was convicted of using a firearm in the commission of his crimes?

2. Whether the trial court erred/abused its discretion by intentionally ignoring Appellee’s prior criminal record, ignoring the deadly weapon enhancement guidelines and sentencing Appellee below the mitigated range of the standard sentencing guidelines?