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COMMONWEALTH PENNSYLVANIA v. ROSE L. KOSTKA (10/31/77)

decided: October 31, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
ROSE L. KOSTKA, APPELLANT



COUNSEL

Goldberg & Wedner, Mark J. Goldberg, Pittsburgh, for appellant.

Graham C. Showalter, Lewisburg, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring and dissenting opinion. Nix, J., filed a dissenting opinion.

Author: Roberts

[ 475 Pa. Page 87]

OPINION OF THE COURT

Appellant was indicted for felony aggravated assault and for misdemeanor aggravated assault.*fn1 On December 27, 1974, a jury found appellant guilty on the misdemeanor charge. The court sentenced appellant on April 28, 1975, to six to twenty-four months imprisonment at the Industrial Home for Women at Muncy. On May 23, 1975, the sentencing judge modified the original sentence to six to twenty-three months in Union County Jail. Appellant appealed to

[ 475 Pa. Page 88]

    the Superior Court which affirmed in a per curiam order. We granted allocatur.*fn2

Appellant contends that her sentence of total confinement should be vacated because it is manifestly excessive. She also asserts that no reasonable explanation was given for imposing a sentence of total confinement, and that the sentence is contrary to Pennsylvania's statutory sentencing guidelines, 18 Pa.C.S.A. §§ 1321 et seq. (Supp.1977). We agree that the trial court failed to articulate a reason for the sentence imposed, reflecting due consideration was given to the statutory sentencing guidelines. We therefore vacate judgment of sentence and remand for resentencing.*fn3

Two police officers stopped a van in which appellant was a passenger because the driver, appellant's boyfriend, made an illegal "U"-turn. A struggle between the driver and the two police officers developed. At first, appellant remained in the van. Later, she got out of the van and began pleading with the officers to stop hitting the driver. After her protestations failed, appellant struck one officer once on the back with a stick*fn4 and kicked the other officer as he attempted to handcuff her. Appellant was arrested without further incident. Neither officer was seriously injured.*fn5

[ 475 Pa. Page 89]

At the first sentencing proceeding, appellant's trial counsel argued that, under the new Sentencing Code, 18 Pa.C.S.A. §§ 1321 et seq. (Supp.1977), probation would be appropriate in light of the circumstances of the offense, appellant's background, and her potential for rehabilitation. The record indicates appellant accepted the blame for her conduct. Prior to trial, she offered to plead guilty to the misdemeanor assault charge, the offense for which she was later convicted; the Commonwealth insisted on going forward with the felony assault charge. Appellant showed remorse during her testimony. She had no prior criminal record nor any involvement with drugs or alcohol. She was attending a community college at the time of the incident. The parole investigator who prepared the pre-sentence report said appellant "was cooperative and answered all questions sincerely."

Appellant's counsel made specific reference to the provisions in the Sentencing Code which ...


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