decided: October 6, 1977.
COMMONWEALTH OF PENNSYLVANIA
HAROLD SMITH, APPELLANT
No. 846 October Term 1976, Appeal from Judgment of Sentence of the Hon. Leonard Sugerman, Judge of the Court of Common Pleas of the 15th Judicial District (Chester County) in Criminal Proceedings Nos. 1304 and 1305 C 1975.
Michael S. Barranco, Assistant Public Defender, Westtown, for appellant.
John H. Wollman, West Chester, submitted a brief for Commonwealth, appellee.
Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Watkins, President Judge, and Jacobs, Hoffman, Price and Van der Voort, JJ., concur in the result.
[ 250 Pa. Super. Page 538]
The question presented by this appeal is whether appellant's counsel at the sentencing hearing was ineffective.
The facts are relatively simple. Appellant pleaded guilty to two counts of sale of heroin. At the sentencing hearing
[ 250 Pa. Super. Page 539]
his counsel argued as a mitigating circumstance that appellant was not involved in drug trafficking but made the sales only to assist a young woman; according to counsel, the young woman was addicted and suicidal, so appellant sold her the heroin, at cost, to tide her over and on the condition that she seek help at a drug treatment center. In reply, the District Attorney said: "Your Honor, I think in all candor to the Court, I would point out to you, this man became the object of a drug investigation because we felt he was part of the Philadelphia connection of drugs into the Coatesville area. That is the reason he was a target." N.T. Sentencing Hearing at 10. The sentencing judge accepted this suggestion that appellant was a drug dealer. Thus, in response to the District Attorney's statement, the judge said: "This couldn't have been a casual venture into Philly to pick up two bundles of heroin. It has to involve some kind of connection. Yes. Go ahead." Id. Also, after imposing the sentence, which was three to fifteen years, the judge said: "We'll stop that heroin trade in some fashion . . . . I trust the word will go out, I'm going to steadily increase those sentences, as the heroin trade increases in the City of Coatesville; and, the next one will be seven-and-a-half to fifteen years in this courtroom." Id. at 12-13.
Since sentencing is a critical stage of prosecution, appellant was entitled to the effective assistance of counsel at the sentencing hearing. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). Moreover, since appellant's counsel on this appeal is different from his counsel at the sentencing hearing, the question whether appellant received the effective assistance of counsel at the sentencing hearing is properly before us. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
If it appeared that there was nothing before the sentencing judge to support the District Attorney's suggestion
[ 250 Pa. Super. Page 540]
that appellant was a drug dealer, it would be necessary to consider whether to remand for a further hearing under Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). It may be that in limited circumstances, a judge in deciding upon sentence may consider arrests without convictions. We so held in Commonwealth v. Shoemaker, 226 Pa. Super. 203, 313 A.2d 342 (1973).*fn1 It by no means follows, however, that an unsubstantiated statement that the forces of the Commonwealth "felt [appellant] was part of the Philadelphia connection of drugs into the Coatesville area" would be held to be an appropriate basis for the sentencing judge's decision. Such a statement would be no better than a statement that the police thought a defendant had the appearance of a habitual criminal -- and that could not sustain a sentence. See United States v. Weston, 448 F.2d 626, 630-31 (9th Cir. 1971).
Here, however, the District Attorney's statement was substantiated -- at least, it appears that it might have been. A presentence report was prepared and was available at the sentencing hearing. In its brief the Commonwealth cites the report as follows:
The defendant had been the object of many investigations. As stated in the PSI [presentence investigation]:
PSI, page 8.
Commonwealth's Brief at 13.
While this excerpt alone does not amount to much, it does suggest that the pre-sentence report may have contained other information, which we might find sufficient to support the sentencing judge's conclusion that appellant was a drug dealer.
Unfortunately, the pre-sentence report is not in the record. The difficulty we face at the appellate level if we
[ 250 Pa. Super. Page 541]
do not have the pre-sentence report on which a judge has based his sentencing decision has been alluded to before. Commonwealth v. Riggins, 232 Pa. Super. 32, 47 & n. 5, 332 A.2d 521, 529 & n. 5 (1974) (Dissenting Opinion by Spaeth, J.). It appears nevertheless that we are not permitted to have pre-sentence reports, for Pa.R.Crim.P. 1404 states that they "shall be available only to" a specified list of persons or agencies, from which "reviewing courts" is absent.*fn2 This is in contrast to the provision of the Sentencing Code that "[t]he [pre-sentence] report shall be available to reviewing courts when relevant to an issue on which a request for review or an appeal has been taken."*fn3 Since this provision has been suspended by the Rules of Criminal Procedure, see Pa.R.Crim.P. 1415(g), it seems that the Supreme Court, through its Procedural Rules Committee, has decided that pre-sentence reports shall not be disclosed to a reviewing court. The difficulty with this conclusion is that one is hard put to imagine a reason sufficient to support it. In reviewing a claim of excessive sentence, we are to decide whether the lower court exercised its discretion "within certain procedural limits, including the consideration of sufficient and
[ 250 Pa. Super. Page 542]
accurate information." Commonwealth v. Martin, 466 Pa. 118, 131, 351 A.2d 650, 657 (1976). We cannot perform this task if we are forbidden to see a pre-sentence report, which may contain information that is insufficient, or inaccurate, or both.*fn4
From the foregoing it might seem that we are at an impasse, unable to fulfil our responsibility as an appellate court: whether appellant's counsel at the sentencing hearing was ineffective depends on what was in the pre-sentence report; however, we are not permitted to know what was in the report.*fn5 In another case, we may indeed find ourselves in such a position. Here, as it happens, we do not.
At the sentencing hearing, appellant did not dispute the pre-sentence report. Thereby he waived his right to put
[ 250 Pa. Super. Page 543]
the Commonwealth to further proof. See, e. g., United States v. Bass, 175 U.S.App.D.C. 282, 535 F.2d 110 (1976), and United States v. Needles, 472 F.2d 652 (2d Cir. 1973), where much stress was laid on the necessity of a defendant's vigorously disputing alleged misinformation in pre-sentence reports. Here, appellant was silent throughout the sentencing hearing; he spoke only through counsel, who stated that the pre-sentence report was "rather thorough, and by and large . . . correct." N.T. Sentencing Hearing at 2.
It is true that appellant's silence is not by itself dispositive of his right to dispute the pre-sentence report, for appellant's contention before us is that his counsel at the sentencing hearing was ineffective. Conceivably, appellant was in fact not silent but told his counsel at the sentencing hearing that the pre-sentence report was not correct, counsel for some reason deciding not to press the point. Therein might lie ineffectiveness. We need not speculate on this possibility, however, for nowhere in his brief has appellate counsel made any showing, nor even alleged, that counsel at the sentencing hearing was ineffective for failing to dispute the pre-sentence report. So far as the record discloses, appellant and his counsel at the sentencing hearing saw the report only at the hearing, in accordance with Pa.R.Crim.P. 1404(a)(2). One may suspect that appellate counsel has never seen the report, in which event it is perhaps not surprising that he has not argued on the basis of its contents. Nevertheless, Rule 1404(a)(2) permits appellate counsel to see the report; he is, after all, "counsel for the defendant." Consequently, if appellate counsel wishes to argue before us that counsel at the sentencing hearing was ineffective for failing to dispute a presentence report, he must examine the report and then set out in his brief in what respect he contends the report prejudiced his client.
[ 250 Pa. Super. Page 544]
There can no longer be any doubt about our duty to decide a claim that a sentence is excessive. Commonwealth Page 544} v. Person, 450 Pa. 1, 297 A.2d 460 (1972); Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1959). This duty, however, depends upon counsel, both for the prosecution and the defense, first performing their duty to develop an adequate record. Both the Sentencing Code, 18 Pa.C.S. § 1321(b), and the cases, see especially Commonwealth v. Martin, supra, specify the criteria by which the sentencing judge is to be guided in formulating the sentence. It is counsel's duty to present to the sentencing judge sufficient evidence so that the judge may apply these criteria in a thoughtful manner. As has been indicated elsewhere, see Commonwealth v. Shoemaker, supra, as a practical matter, the performance of this duty will in most cases be defense counsel's principal responsibility. While counsel's failure to perform this duty may result in his being declared ineffective, that can only occur if in his turn appellate counsel properly presents the claim of ineffectiveness. That was not done here.