Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 1848-02 of 1973, in case of Commonwealth of Pennsylvania v. Tony Martin.
Stephen R. LaHoda, First Assistant Public Defender, for appellant.
Stephen B. Harris, First Assistant District Attorney, with him Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Hoffman, J. Watkins, P. J., and Jacobs, J., dissent. Van der Voort, J., did not participate in the consideration or decision of this case.
[ 233 Pa. Super. Page 233]
The sole meritorious issue raised in this appeal is that the lower court imposed an illegal fine upon the appellant.
On November 12, 1973, the President Judge of the Court of Common Pleas of Bucks County granted the appellant's application for the assignment of counsel pursuant to § 9960.6 of the Public Defender Act.*fn1 Two attorneys from the Bucks County Public Defender Association were appointed to represent appellant in a prosecution for murder and related charges arising from the shooting death of appellant's common law wife on August 16, 1973. Appointment was predicated on the court's finding of appellant's indigency as required by the Act.
On June 11, 1974, a jury found appellant guilty of involuntary manslaughter. On August 2, 1974, the defendant was sentenced to a term of two and one-half to five years' imprisonment. In addition, appellant was ordered to pay the costs of prosecution and a fine of $5,000.00. When the trial judge pronounced sentence, he stated that the fine "represents the minimal fee that [the appellant] may have paid to private counsel for the able representation that he received in this case." An appeal
[ 233 Pa. Super. Page 234]
from the judgment of sentence was filed on August 19, 1974.
The Commonwealth cites the black letter principle of law that an appellate court will not review the sentence in a criminal case unless it exceeds the statutorily prescribed limits or is so manifestly excessive as to constitute too severe a punishment. See Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Bilinski, 190 Pa. Superior Ct. 401, 154 A.2d 322 (1959). But cf., Commonwealth v. Riggins, 232 Pa. Superior Ct. 32, 332 A.2d 521 (1974); (see separate dissenting opinions of Hoffman, Cercone, Spaeth, JJ.). Under § 2504 of the Crimes Code,*fn2 supra, involuntary manslaughter is a misdemeanor of the first degree, punishable under § 1101 by a fine not exceeding $10,000.00.
In order to impose a fine, a sentencing judge must consider provisions of the Pennsylvania Rules of Criminal Procedure. Rule 1407 (c) provides: "The court, in determining the amount and method of payment of a fine or costs shall, insofar as it is just and practicable, consider the burden upon the defendant by reason of his financial means, including his ability to make restitution or reparations." Cf. Comment IV to Rule 1405: "In considering whether to impose a fine in addition to another sentence, either involving imprisonment or probation, it would be appropriate for the sentencing judge to accord weight to the following factors: (1) whether the defendant has derived a pecuniary gain from the crime; or (2) whether the sentencing judge is of the opinion that a fine is specially adapted to deterrence of the crime involved or to the correction of the sentence."
In the instant case, the court knew that appellant had been declared an indigent. Arguably, sentencing an indigent to pay a $5,000.00 fine is per se so manifestly ...