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decided: January 29, 1976.



Theodore S. Danforth, Thomas E. Harting, William C. Haynes, Richard C. Shay, Lancaster, for appellants.

D. Richard Eckman, Dist. Atty., Louise G. Herr, Asst. Dist. Atty., Lancaster, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurs in the result. Nix, J., filed a dissenting opinion in which Jones, C. J., joins.

Author: Roberts

[ 466 Pa. Page 120]


These six appeals arise from appellants' convictions in the Court of Common Pleas of Lancaster County, for violations of the Uniform Controlled Substance, Drug, Device and Cosmetic Act,*fn1 all of which occurred during the months of April to June, 1972, Appellants raise no objections to their convictions. However, they contend that their sentences were imposed in accordance with a policy agreed to in advance by the three judges of the court and the district attorney's office without reference to either appellants' individual characteristics or to the circumstances of the particular offenses. An equally divided Superior Court affirmed the sentences in a per

[ 466 Pa. Page 121]

    curiam order.*fn2 Judge Spaeth, in his opinion in support of reversal joined by Hoffman and Cercone, JJ., stated:

"[T]he record demonstrates: That the three judges had agreed in advance that the sentence to be imposed for a sale of heroin should be three to ten years imprisonment plus a fine, without consideration being given to the defendant's individual characteristics, the sentence to be consecutive if more than one sale were proved; and that each of the six appellants was sentenced in accordance with this agreement. From these facts it follows that the sentences were illegal."*fn3

We agree and vacate the sentences imposed and remand for resentencing.


Appellants were all charged with the illegal sale of controlled substances. There was no evidence of a conspiracy among the appellants, and no claim is made that the sentences imposed were based on such an allegation.

Appellant Harry Martin appeared before the Honorable Wilson Bucher on September 21, 1972, and pleaded guilty to three sales of heroin. The undercover agents involved gave a brief recitation of the circumstances of the sales, and an inquiry was made into the voluntariness of the guilty plea and of the waiver of trial by jury. Thereafter, defense counsel and appellant's mother were allowed to present evidence concerning appellant's background.*fn4 At 10:00 a. m. the court recessed

[ 466 Pa. Page 122]

    until 2:00 p. m.*fn5 When court reconvened, Judge Bucher imposed a sentence of three to ten years imprisonment to be served consecutively, and a fine of $2,500 for each of the three sales, i. e., nine to thirty years and $7,500.*fn6

Appellant Rafael Nieves was tried before the Honorable W. G. Johnstone, Jr., with a jury on September 25, 1972, and was found guilty of five counts of selling heroin. Appellant's attorney, at the outset of the trial, moved for a pretrial psychiatric examination because there was evidence that appellant was insane. He also moved for a change of venue asserting that the court had adopted an illegal sentencing policy. Both motions were denied without comment. At the sentencing hearing, only passing reference was made to appellant's background and mental capacity, and the question whether appellant was an addict, raised by defense counsel, was ignored.*fn7 A sentence of three to ten years' imprisonment,

[ 466 Pa. Page 123]

    to be served consecutively, and a fine of $100 for each count, was then imposed, i. e., fifteen to fifty years and $500.

Appellant Warren Canoles was tried before Judge Bucher, sitting with a jury; he was found guilty on September 28, 1972, of three counts of selling heroin. The jury added the words "with recommendation for treatment" to its verdict form. At the sentencing hearing, testimony was presented to the effect that appellant was addicted to heroin, that he had no prior offenses other than a minor drinking violation, and that he did not sell heroin for profit. These contentions were neither denied nor contradicted, and the court, before imposing sentence, made no further inquiry into any of these matters. During the hearing, the court made the following comments:

"He [appellant] was found guilty here of sales and we treated the others the same way.

I shouldn't have to torture myself. The court has already determined it's three to ten years is that it's going to do. Why should I do any different in this case?

The legislature says it's serious and they expect the courts to impose sentences to deter. I haven't heard any reason why we shouldn't give the standard sentence we have been giving this term of court.

[ 466 Pa. Page 124]

The rehabilitation is a legislative and executive matter. I have nothing to do with rehabilitation.

I don't think these sentences mean what they say, either.

I am going to sentence just as we have sentenced in the past."

These comments were made in response to attempts by defense counsel and an undercover agent to show that appellant Canoles sold only to users; that he was heavily addicted; that he was not a threat to the community; and that he was in need of treatment. These mitigating and extenuating circumstances were deemed irrelevant. The judge sentenced appellant "just as we have sentenced in the past": three to ten years imprisonment, to be served consecutively, and a fine of $100 for each count, i. e., nine to thirty years and $300.

Appellants Hector Burgos and James Keyes appeared separately before the Honorable W. Hensel Brown on September 29, 1972. Appellant Burgos pleaded guilty to two counts of selling heroin, and appellant Keyes pleaded guilty to three counts of selling heroin, two counts of selling cocaine and one count of selling marijuana.

The court made virtually no inquiry into either the circumstances of the crimes or appellants' backgrounds at either sentencing hearing.*fn8 Appellant Burgos received a

[ 466 Pa. Page 125]

    sentence of three to ten years imprisonment, to be served consecutively, and a fine of $1,500 for each count, i. e., $3,000 and six to twenty years. The sentence imposed on appellant Keyes was one to two years imprisonment, and a fine of $500 for the sale of marijuana; the same sentence for the two sales of cocaine;*fn9 and three to ten years imprisonment, and a fine of $2,500 for each of the three sales of heroin, the prison terms to be served consecutively, i. e., eleven to thirty-four years and $8,500.

Appellant Dale Troop was the last of the six appellants to be sentenced. He was found guilty of a single sale of heroin in a trial before Judge Brown, sitting with a jury. The sentencing hearing began immediately following the jury's verdict and consisted of statements filling a total of two and a half typewritten pages. The court made virtually no inquiry into the circumstances of the crime

[ 466 Pa. Page 126]

    or appellant's background,*fn10 and imposed a sentence of three to ten years imprisonment and a fine of $2,500 for the single count.

The record amply demonstrates that the three judges had agreed in advance that the sentence to be imposed for a sale of heroin was to be three to ten years imprisonment plus a fine, and all of the sentences were to run consecutively.*fn11 In no case was a pre-sentence report ordered.

[ 466 Pa. Page 127]

No meaningful inquiry was made into the appellants' backgrounds, individual characteristics, relative culpability or prospects for rehabilitation, despite clear evidence that the appellants' offenses were committed in varying circumstances. In short, all appellants' sentences

[ 466 Pa. Page 128]

    were based on an abstract predetermination of the sentence to be imposed for the particular offense, without regard to the individual circumstances of particular cases.


Mr. Justice Schaefer of the Supreme Court of Illinois has stated:

"The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal laws."*fn12

Sentencing procedures, which have undergone substantial revision during the last one hundred years, have become a reflection of the effectiveness of that enforcement. At one time, sentencing by a court after a finding of guilt was purely ceremonial, since there was but one penalty at law for any given crime.*fn13 However, during the nineteenth century, when incarceration became the primary mode of punishment, the practice of discretionary sentencing began.*fn14 At first this took the form of executive pardons, and the judge's duty remained only to apply the sentence mandated by law.*fn15 However, discretionary sentencing soon became an integral part of judicial procedure; the sentencing court had increasing discretion in its choice of sentence.*fn16 This development reflected

[ 466 Pa. Page 129]

    the move toward individualized sentencing, which attempted to rehabilitate, as well as to punish, the offender.*fn17

The indeterminate sentence won early recognition in Pennsylvania. The Act of June 19, 1911, P.L. 1055 § 6, as amended, 19 P.S. § 1057 (1964), provides in pertinent part:

"Whenever any person, convicted in any court of this Commonwealth of any crime punishable by imprisonment in a State penitentiary, shall be sentenced to imprisonment therefor in any penitentiary or other institution of this State, or in any county or municipal institution, the court, instead of pronouncing upon such convict a definite or fixed term of imprisonment, shall pronounce upon such a convict a sentence of imprisonment for an indefinite term: Stating in such sentence the minimum and maximum limits thereof; and the maximum limit shall never exceed the maximum time now or hereafter prescribed as a penalty for such offense; and the minimum shall never exceed one-half of the maximum sentence prescribed by any court."

The Legislature reinforced these provisions by allowing suspension of sentence and probation, at the sentencing court's discretion, in all but the most serious crimes. Act of June 9, 1911, P.L. 1055, § 1, as amended, 19 P.S. § 1051 (1964). The court has the power to use this sentencing alternative where:

". . . the said court believes that the character of the defendant and the circumstances of the case [are] such that he or she is not likely again to engage in an offensive course of conduct, and that the public good does not demand or require that the defendant should suffer the penalty imposed by law . . . ."

Id. Moreover, if more than one sentence is being imposed on the defendant at one time, the sentencing court

[ 466 Pa. Page 130]

    has the power to have them run concurrently or consecutively.*fn18 The Legislature gave the trial court the power to order a pre-sentence report and a psychiatric and diagnostic examination of the defendant in order to properly determine the appropriate disposition.*fn19

Pennsylvania's procedure of indeterminate sentencing carries with it an implicit adoption of the philosophy of individual sentencing.*fn20 This necessitates the granting of broad discretion to the trial judge, who must determine, among the sentencing alternatives and the range of permissible penalties, the proper sentence to be imposed.*fn21

[ 466 Pa. Page 131]

The importance of this discretion cannot be overemphasized; many commentators argue that it is one of the most important, and most easily abused, powers vested in the trial court today.*fn22 In United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722, 723 (1970), Judge Wilkey, speaking for the court, states:

"What happens to an offender after conviction is the least understood, the most fraught with irrational discrepancies, and the most in need of improvement of any phase in our criminal justice system."

The Commonwealth argues that this sentencing discretion should not be disturbed unless the trial court exceeds the statutorily prescribed limits or is so manifestly excessive as to constitute too severe a punishment. See Commonwealth v. Williams, 456 Pa. 550, 551-52, 317 A.2d 250, 251 (1974); Commonwealth v. Lee, 450 Pa. 152, 156, 299 A.2d 640, 642 (1973); Commonwealth v. Person, 450 Pa. 1, 4-5, 297 A.2d 460, 462 (1972); Commonwealth v. Wrona, 442 Pa. 201, 206, 275 A.2d 78, 81 (1971).

It is true that the sentence imposed is normally left undisturbed on appeal because the trial court is in a far better position to weigh the factors involved in such a determination. However, we have held that the court's discretion must be exercised within certain procedural limits, including the consideration of sufficient and accurate

[ 466 Pa. Page 132]

    information. In Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1951), a first degree murder case, we held that the trial court abused its discretion when it imposed the death penalty solely on the basis of the criminal act. There was no consideration of the character of the convicted individual and no inquiry was made into any extenuating or mitigating circumstances. See also Commonwealth v. Irelan, 341 Pa. 43, 17 A.2d 897 (1941); Commonwealth v. Garramone, 307 Pa. 507, 161 A. 733 (1932). In Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973), we held that, if the court orders a presentence report, defense counsel has a right to examine its contents before sentencing and, if he contests any portion, to offer evidence in rebuttal. We note further that such review is in conformity with the ABA Project on Minimum Standards of Justice, Standards Relating to Appellate Review of Sentencing, § 3.2 (Approved Draft, 1968):

"The authority of the reviewing court with respect to the sentence should specifically extend to review of:

(ii) the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based."

The procedures employed by the sentencing court in the appeals before us today ignore the basic premises of Pennsylvania individualized sentencing. Here, as in Green, the nature of the criminal act was used as the sole basis for the determination of the length of sentence, and all sentences of imprisonment were to run consecutively.*fn23

[ 466 Pa. Page 133]

Thus the court failed to exercise its broad discretion in accordance with the applicable statutory requirements.*fn24

The sentence must be imposed for the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. See 18 Pa.C.S. § 1321 (b) (Supp.1975).*fn25 At least two factors are crucial to such determination -- the particular circumstances of the offense and the character of the defendant. Pa.R.Crim.P. 1403(a)(2) provides that all pre-sentence reports shall include such information. We hold that regardless of whether a pre-sentence report is ordered, the sentencing court must at least consider these two factors in its sentencing determination. Failure to give such individualized consideration requires that these sentences be vacated.

Obviously, the extent and the contents of a pre-sentence inquiry will vary depending on the particular case. A more extensive and careful investigation is clearly called for in felony convictions, particularly where long terms of confinement are contemplated. The ABA Project on Minimum Standards of Justice has stated the essential and adequate elements of a full pre-sentence

[ 466 Pa. Page 134]

    report.*fn26 We note that most of these factors are clearly relevant in any sentencing disposition, although the weight given by the sentencing court to any one factor must depend on the particular case.

In these cases the court did not order any pre-sentence reports although it was authorized to do so. See Pa.R.Crim.P. 1403. Normally such reports should be used, although they are sometimes unnecessary because other sources of information are available. However, pre-sentence reports are of obvious importance to the sentencing court. In Williams v. New York, 337 U.S. 241, 249-50,

[ 466 Pa. Page 13569]

S.Ct. 1079, 1084, 93 L.Ed. 1337 (1965), the United States Supreme Court stated:

"[Pre-sentence] reports have been given a high value by conscientious judges who want to sentence persons in the best available information rather than on guesswork and inadequate information. To deprive sentencing judges of this kind of information would undermine modern penological procedural policies . . . ."

The ABA Project on Minimum Standards of Justice, Standards Relating to Probation § 2.1 (Approved Draft, 1970), recommends that a pre-sentence report is peculiarly necessary in any of the following circumstances: 1) where incarceration for one year or more is a possible disposition; 2) where the defendant is less than twenty-one years old; and 3) where the defendant is a first offender.*fn27 These situations require the utmost care in sentence determination. We are therefore requesting that the Criminal Procedural Rules Committee prepare a recommendation for the Court amending Rule 1403 to require that, whenever a sentencing court fails to order a pre-sentence report in any of these situations, it shall place in the record its reasons for dispensing with such report.

[ 466 Pa. Page 136]

Order of the Superior Court affirming judgments of sentence reversed. Judgments of sentence vacated and cases remanded for resentencing.

NIX, Justice (dissenting).

The sentencing decision is the most complex and difficult function a jurist is called upon to perform.*fn1 Because of the nature of the decision and the variables upon which it depends,*fn2 we have long recognized the wisdom in vesting this responsibility within the discretion of the trial judge and we have been loath to interfere except where there has been a clearly demonstrated abuse of that discretion.*fn3

Recognizing the trial judge's unique position to perform this function*fn4 we have deliberately curtailed the scope of appellate review in this area.

[ 466 Pa. Page 137]

"The Court has said many times that the Commonwealth has no right to appeal from an adverse ruling in the trial court unless a pure question of law is involved, and that the Commonwealth may not appeal if the action complained of is based on an admixture of law and fact. See Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961); and Commonwealth v. Hartman, 383 Pa. 461, 119 A.2d 211 (1956).

Whether a trial judge imposed a proper sentence on a criminal defendant does not present a pure question of law, unless the sentence exceeds the statutorily prescribed limits or is such as to be constitutionally impermissible. In the usual case, the problem presents a mixture of law and fact. Hence, our Superior Court has correctly ruled that the sentence imposed on a person convicted of crime lies with one exception (where the conviction is for first degree murder following a trial by jury) within the sole discretion of the trial court, and the sentence imposed will not be reviewed by an appellate court, unless it exceeds the statutorily prescribed limits or is so manifestly excessive as to constitute too severe a punishment. See Commonwealth v. Bilinski, 190 Pa. Superior Ct. 401, 154 A.2d 322 (1959)."

Commonwealth v. Wrona, 442 Pa. 201, 206, 275 A.2d 78, 80-81 (1971).

See also Commonwealth v. Lee, 450 Pa. 152, 156, 299 A.2d 640, 642 (1973).

In the instant appeals, it is conceded that the statutorily prescribed limits have not been exceeded nor were the

[ 466 Pa. Page 138]

    sentences manifestly excessive as to constitute an unduly severe punishment. In my judgment the majority opinion introduces a concept of appellate review that would permit an appellate tribunal to superimpose its sentencing philosophy upon the sentencing court. I believe this intrusion upon the trial court's sentencing discretion is unwarranted and therefore register my dissent.

The majority attempts to establish the legitimacy of its position and to deny its deviation from our former position by asserting "the record amply demonstrates that the three judges had agreed in advance" upon the sentence and failed to make a meaningful inquiry into "appellants' backgrounds, individual characteristics, relative culpability or prospects for rehabilitation." I do not believe that the record established that the trial judges ignored those factors upon which the sentencing decision should be premised. Further, in my judgment, the majority's real complaint is the weight to be attached to the germane variables in the sentencing decision.

This jurisdiction is committed to the principle of individualized sentences. However, as conceded by the majority, the most frequent and justifiable criticism of this policy is the unsupportable disparity which all too frequently results.*fn5 Thus, judges should not be discouraged

[ 466 Pa. Page 139]

    from achieving uniformity in sentences where there are no significant differences in the nature of the crime and the background of the offender to dictate a contrary result.

In appraising appellants' contention, which was accepted by the majority, that the Judges of Lancaster County had agreed upon a formula for sentencing which ignored the peculiarities of the particular cases, we must turn to the factual setting in which these appeals arose. The Pennsylvania State Police, as a result of a special investigation, gathered evidence as to drug sales in the Lancaster County area which culminated in a large raid on July 19, 1972.*fn6 Twenty-three persons were arrested and charged with drug sales. Eleven of these individuals were charged with sales of heroin. The majority supports its conclusion that the judges of the county reached a consensus as to the treatment of those convicted of sales of heroin*fn7 from an analysis of only six of these eleven cases.*fn8

[ 466 Pa. Page 140]

If we accept the validity of using these six cases as evidence of a consensus, it nevertheless overstates the case to argue that the resultant formula eliminated the sentencing judges' exercise of discretion in the individual cases. As noted earlier (see footnote 1), the sentencing decision encompasses a number of judgments. At best, the record would arguably support that this consensus affected only one of these judgments, to wit, the length of the prison term to be imposed.

The first and most important judgment is the determination as to whether imprisonment or some other viable alternative is appropriate. The majority unjustifiably assumes that because in these six cases, imprisonment was chosen as the appropriate punishment, that this fact necessarily suggests that the alleged agreement dictated the decision. I strenuously disagree because I know of no responsible jurist at this particular time in America who would not recognize the necessity of imprisonment where the record conclusively establishes sales of heroin for profit absent any significant mitigating or extenuating circumstance. In my judgment, the reason that prison sentences were imposed in the six cases was completely unrelated to any consensus, but rather because this judgment was dictated by the nature of the crime and a consideration of all of the surrounding circumstances including the background of the individual appellants.

My reading of the record satisfies me that this alleged agreement as to the term of imprisonment was not of such an iron-clad nature that it would exclude consideration of significant legitimate factors. The judges permitted the defense to fully develop all mitigating and extenuating information and considered this evidence in reaching its decision.*fn9 The record also establishes that

[ 466 Pa. Page 141]

    the judges distinguished between the sale of heroin and the sale of less dangerous drugs. The fact that the alleged agreed upon sentence was imposed in the six instances was, in my judgment, indicative of the fact that there was no basis for any significant differences in treatment between the offenders. In each instance, the record supports a finding that the offenders were engaged in the traffic of heroin for profit.

Where the nature of the criminal conduct is substantially the same and the background of the offenders are comparable, uniformity of treatment is to be desired. If, in fact, the judges of this county reached a consensus that provided uniformity in treatment and yet allowed for significant individual differences, I believe such a procedure would be in accord with the modern view of sentencing.*fn10 One of the reasons for vesting in trial

[ 466 Pa. Page 142]

    judges wide discretion in this area is to permit them to use their initiative in attempting to enhance the quality of sentencing. Nor do I perceive any reason why judicial initiative must await legislative fiat. Where the alleged agreed upon term of imprisonment was substantially below the maximum prescribed for the criminal conduct, there would be no occasion to alter this sentence for minor differences in the background of the individual offenders. The only significant difference reflected in this record was the number of counts for which the various appellants were convicted. The sentences imposed reflected this difference.

I also reject appellants' argument that pre-sentence reports should have been obtained in these instances. None of these appellants specifically requested that a pre-sentence report be made. More importantly, there was nothing in the record of any of these cases which would suggest additional information, not already possessed by the court, would have been obtained if such a procedure had been followed. Our Pennsylvania Rule of Criminal Procedure 1403 places the decision as to whether a presentence investigation report should be prepared, within the discretion of the trial judge. Where, as here, there was ample evidence to determine that these crimes were inspired by greed and the defense had been given full opportunity to articulate any extenuating or mitigating circumstances, I do not believe that a decision that a pre-sentence report was unnecessary was an abuse of that discretion.

I would affirm the judgment of sentence in each case.

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