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COMMONWEALTH PENNSYLVANIA v. BRENDA THURMOND (07/12/78)

SUPERIOR COURT OF PENNSYLVANIA


decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
BRENDA THURMOND, A/K/A BRENDA THURMAN, APPELLANT

No. 650 October Term 1977, Appeal from Order of Court of the Hon. Judge James R. Marsh, Imposing Sentence dated December 6, 1976, # 129 October Term 1975, Court of Common Pleas, 43rd Judicial District, Monroe County Branch - Criminal.

COUNSEL

Jeffrey G. Velander, Public Defender, Stroudsburg, for appellant.

Charles P. Eyer, Assistant District Attorney, Stroudsburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in the result. Price, J., files a concurring statement. Van der Voort, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Spaeth

[ 257 Pa. Super. Page 465]

Appellant was found guilty on two counts of gambling, 18 Pa.C.S. ยง 5513,*fn1 and was sentenced to serve three to twenty-three months imprisonment and to pay a fine of $500. On appeal she argues that the sentence was excessive.

[ 257 Pa. Super. Page 466]

It is settled that a sentencing judge must state his reasons, for the sentence he chooses. Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Wertz, 252 Pa. Super. 584, 384 A.2d 933 (1978). Here the lower court filed an opinion, in which it states:

In this case, the Defendant appeared as a witness on behalf of her brother on the same criminal scene, while her brother did not take the stand. Assuming the jury verdict to be correct, the Defendant was untruthful and evasive in her testimony, both as a witness on behalf of her brother and as a witness on her own behalf. Therefore, the aspect of leniency does not enter into the picture in that no repentance is shown. At no point does the Defendant shoulder up to the responsibility, admit that she was in an illegal situation and ask the Court to aid her in rehabilitating herself. This also negatives any concept of leniency for a first offense, because that is based on the idea that a person may get into a criminal situation and not have the propensity to repeat.

Lower Court Slip Opinion at 3.

It may be that appellant's testimony manifested a lack of repentance, although it would seem at least equally likely that she had lied in a misguided effort to help her brother. However this may be, there is an additional aspect of the case on which we require the court's stated reasoning.

As indicated in the above excerpt from the lower court's opinion, appellant's brother was indicted on the same charges as appellant. He took no appeal after conviction and sentence. The brother was the manager of the diner where the gambling occurred that led to the charges against appellant; appellant, by contrast, was only a part-time employee.*fn2 Appellant's brother had a record of eight convictions

[ 257 Pa. Super. Page 467]

    prior to this case; appellant had no prior record. The trial testimony indicates that appellant's brother was the organizer of the gambling activities in which appellant assisted him. In view of these differences between appellant and her brother, it is striking that appellant's brother was sentenced to serve two years probation, in contrast to appellant's sentence of three to twenty-three months imprisonment.*fn3

In order for a trial judge to impose different sentences on co-defendants, he must find differences between the co-defendants to justify the sentences. Commonwealth v. Fitzgerald, 101 Pa. Super. 308 (1931). This writer has said: "Probably nothing has corroded respect for the criminal justice system more than judicial indulgence in unexplained widely disparate sentences." Commonwealth v. Andrews, 248 Pa. Super. 1, 7, 373 A.2d 459, 462 (1977) (Dissenting Opinion by Spaeth, J.), allocatur granted.

The judgment of sentence is vacated, and the case remanded for resentencing.

PRICE, J., files a concurring statement:

I wish to express my agreement to vacate the sentence and remand based solely upon the court below failing to explain the disparate sentences between appellant and her brother.


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