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decided: March 31, 1977.


Appeal from the Judgment of Sentence imposed February 10, 1976, Court of Common Pleas, Criminal, for the County of Luzerne, at No. 2750 of 1975, No. 82 of 1976, No. 101 of 1976. No. 1197 October Term 1976.


Peter J. Webby, Assistant Public Defender, Wilkes-Barre, for appellant.

Thomas Glenn, Jr., Assistant District Attorney, and Patrick J. Toole, Jr., District Attorney, Wilkes-Barre, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins.

Author: Per Curiam

[ 247 Pa. Super. Page 38]

On February 10, 1976, the appellant, Brian Smith, entered a plea of guilty to three counts of burglary.*fn1 Subsequently, the trial court imposed a sentence of two to four years in the county prison. This appeal followed.

Appellant's sole contention is that, under the circumstances, the sentence was harsh and cruel. In support of this position appellant directs our attention to the following facts: (1) He is eighteen years of age and still in high school; (2) He has no prior adult record; (3) He has cooperated with the authorities; and (4) There was no violence involved in any of the burglaries.

It must be emphasized that appellant does not contend that the sentencing judge neglected to take into consideration the foregoing factors. See Commonwealth v. Kaminski, 244 Pa. Super. 388, 368 A.2d 776 (filed December 15, 1976). Indeed appellant neither alleges nor suggests that the judge failed to comply in any respect with the sentencing standards established in this Commonwealth.*fn2 Nor does appellant claim that the sentence exceeds the maximum statutory limit.*fn3 Rather, it is simply appellant's position that, in light of the previously mentioned circumstances, the sentence is cruel and harsh. For all intents and purposes, this is the identical argument we recently rejected in Commonwealth v. Kaminski, supra.

It is hornbook law that the imposition of sentence lies within the sole discretion of the sentencing judge. Commonwealth v. Williams, 456 Pa. 550, 317 A.2d 250 (1974). Furthermore, the broad discretion reposed in the sentencing judge will not be disturbed on appeal unless: (1) the sentence exceeds the statutorily prescribed limits; or (2) the

[ 247 Pa. Super. Page 39]

    sentence is manifestly excessive; or (3) the court's discretion was not exercised "in accordance with the applicable statutory requirements." Commonwealth v. Martin, supra, 351 A.2d at 658; See also Commonwealth v. Person, 450 Pa. 1, 297 A.2d 460 (1972); Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Kaminski, supra.

Instantly, the sentence was well within the statutory limits. See note 3, supra. The mitigating factors to which appellant alludes do not establish that the sentence was "manifestly excessive." See Commonwealth v. Williams, supra. "[W]hile the judge did impose a sentence that some might regard as 'severe,' defense counsel has not furnished us with a record warranting the conclusion that it was 'too severe.'" Commonwealth v. Shoemaker, 226 Pa. Super. 203, 215, 313 A.2d 342, 348 (1973); See also Commonwealth v. Middleton, 242 Pa. Super. 421, 364 A.2d 342 (1976). Finally, appellant does not allege -- let alone establish -- that the sentencing judge failed to consider either his character or the circumstances surrounding the offenses. See Commonwealth v. Martin, supra. Accordingly, there is no basis for concluding that the lower court abused its discretion.

Judgment of sentence affirmed.

SPAETH, Judge, dissenting:

Simply because a sentence is "well within the statutory limits" does not mean that it may not be "manifestly excessive." In Pennsylvania we have adopted the principle of indeterminate sentencing. Under that principle, the sentencing judge is given broad discretion; but he must exercise that discretion after considering "the particular circumstances of the offense and the character of the defendant." Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976). Suppose a crime punishable by a maximum sentence of twenty years, for example, burglary. A sentence of two to five years would be "well within the statutory limits."

[ 247 Pa. Super. Page 40]

However, a consideration of the particular circumstances of the offense (empty building, nothing taken, no weapon used, no one threatened or endangered, no damage done) and of the character of the defendant (first offense, no attempt to flee, good job and work record, steady provider of his family) might nevertheless show that the sentence was "manifestly excessive." Commonwealth v. Martin, supra (by implication); Commonwealth v. Kaminski, 244 Pa. Super. 388, 368 A.2d 776 (filed December 15, 1976) (Dissenting opinion by SPAETH, J.).

In my opinion, contrary to the majority's, appellant here does assert that his sentence was manifestly excessive according to the Martin standards. The question, therefore, is whether we are able to decide whether appellant is right. In Commonwealth v. Riggins, 232 Pa. Super. 32, 46-48, 332 A.2d 521, 528-29 (1974), allocatur granted, I observed, in dissent, that to decide whether a sentencing judge has properly exercised his discretion, an appellate court must have at least a brief statement of the reasons for the sentence; I further observed that such a statement is required by Superior Court Rule 46.*fn* Here no statement has been filed.

I would therefore remand for a statement.

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