No. 2059 October Term, 1976, Appeal from the Judgment of Sentence of June 10, 1976. Imposed by the Court of Common Pleas of Northampton County, Criminal Division, at No. 65 August Term, 1975.
Gary Neil Asteak, Assistant Public Defender, Easton, for appellant.
Alan B. McCall, Assistant District Attorney, and John E. Gallagher, District Attorney, Easton, for Commonwealth, 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.
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This is an appeal from the judgment of sentence of the Court of Common Pleas of Northampton County after conviction
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of the defendant-appellant, Sidney Knighton, in a jury trial of crimes of burglary, theft of movable property, and from the denial of post-trial motion. He was sentenced to two and one-half to five (2 1/2 to 5) years imprisonment.
The appellant contends that he was denied his right to allocution at sentencing. The record belies this claim as it establishes that he and his counsel were afforded the opportunity to address the court prior to the imposition of sentence. He also complains because the court sought the aid of the full bench in fixing sentence as the trial judge had the inclination to sentence him to the maximum term. This benefited the appellant. His consultation with the full bench is not grounds to set aside the sentence. The sentence is within the discretion of the court. Commonwealth v. Reese, 230 Pa. Super. 471, 327 A.2d 189 (1974).
A store was broken into on the night of June 30, 1975, and clothing of the value of $4940.76 was stolen. Statements made by the appellant in the presence of two Commonwealth witnesses who resided with the appellant of his intention to burglarize the store before the commission of the crime and statements of the same witness indicating his part in the burglary when he returned in possession of items stolen were submitted into evidence under objection. These statements qualify as admissions and are exceptions to the hearsay rules. Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972).
The court below properly denied the appellant's demurrer and request for binding instructions. The evidence was sufficient under the law to support the verdict. Items found in the appellant's apartment were identified by the store manager as being part of the loot of the burglary. This was the same material that the two witnesses testified were in the appellant's possession when he returned to his residence and which he stated that he had secured from the burglary.
The court's charge as to voluntary intoxication was sufficient. Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661
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(1975). Appellant's point for charge, which was refused, was redundant.
During voir dire, one prospective juror in answer to a question, remarked that everyone was a victim of crime. The court immediately dismissed the juror. The motion for a mistrial was properly refused. Judgment of sentence affirmed.
SPAETH, Judge, dissenting:
After a jury had found appellant guilty of burglary*fn1 and theft of movable property,*fn2 the lower court sitting en banc denied appellant's motions in arrest of judgment and for new trial, and on June 10, 1976, the trial judge sentenced appellant to two and a half to five years in prison. Appellant has repeated to us the arguments he made to the lower court in support of his motions in arrest of judgment and for new trial. I shall not discuss these arguments, however, for they present no novel point of law, and the lower court has ably disposed of them in the opinion it filed in support of its order denying appellant's motions. Appellant has in addition argued to us that his sentence was illegal; this argument requires discussion.
Rather than summarize, it will be better to quote the entire transcript of the sentencing hearing. It is as follows:
THE COURT: Mr. Knighton, we have gone through all of this. Your counsel has read the presentence investigation that was made.
I will hear from counsel if he has anything to say, but I want to preface this with this remark: The grief that you have caused my family can never be measured.
THE DEFENDANT: What was that?
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THE COURT: You don't even remember what it was. The threats that you made over the telephone, the change in our lifestyle since those calls; no way of ever going back to the way we did live in that household and I felt so strongly about that, Mr. Knighton, that I did not take it upon myself to figure out the sentence in this case because I felt too strongly.
I will hear what your counsel has to say.
MR. ASTEAK [Assistant Public Defender]: Your Honor, I discussed with Mr. Knighton your sentencing him on these charges in light of the occurrences which you just spoke of. Mr. Knighton informed me that he felt that as you, I believe expressed, could not set your personal feelings aside, your family's feelings aside, and on the basis of the record and on the basis of the presentence report, honestly and fairly sentence him on these charges. I discussed with him the possibility of requesting another judge to sentence, as well as other remedies that were possible in light of these --
THE COURT: I think this kind of scum does not belong anywhere in this society. Under the guise of a telephone you will make people's lives miserable, as miserable as you made those in our family, but what I have done is this: I have not entered into this sentence. I have asked my colleagues at our sentencing council to come up with a sentence and I will be guided by it, but were I doing it otherwise, because of my prejudice in this thing, I might sentence more -- ...