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COMMONWEALTH PENNSYLVANIA v. JOSEPH I. WAREHAM (10/27/78)

decided: October 27, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH I. WAREHAM, APPELLANT



No. 1308 October Term 1977, Appeal from the order dated March 1, 1977, Judgment of Sentence of Tredinnick, J., Dated Feb. 18, 1976, in the Court of Common Pleas of Montgomery County, Pa., Criminal Div., at No. 746, January Term, 1975.

COUNSEL

George B. Ditter and Calvin S. Drayer, Jr., Assistant Public Defenders, Norristown, for appellant.

William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.

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

Author: Spaeth

[ 259 Pa. Super. Page 530]

On December 9, 1975, appellant was found guilty of simple assault, possession of a weapon, recklessly endangering another, and terroristic threats.*fn1 On February 18, 1976, appellant was sentenced to consecutive sentences of 1 to 2 years for simple assault and possession of a weapon, these sentences to be served concurrently with consecutive sentences of 2 1/2 to 5 years for recklessly endangering another and terroristic threats. These combined sentences, in effect amounting to a sentence of 5 to 10 years in a state institution, were to be served consecutive to a sentence of 10 to 20 years that appellant was serving on another charge.*fn2

Appellant appealed to this court but then filed a petition asking that the case be remanded to the lower court so that he could file a petition for reconsideration of the sentences. We granted this petition. On February 28, 1977, the lower court held a hearing on appellant's petition for reconsideration, and on March 1 entered an order denying the petition. This appeal is from that order. Appellant argues that the

[ 259 Pa. Super. Page 531]

    sentences are in combination manifestly excessive, assigning as his reasons the nature of the charges, the consecutive aspect of the sentences, and the facts that he was only 21, and a first offender.

Our system of indeterminate sentencing "necessitates the granting of broad discretion to the trial judge, who must determine, among the sentencing alternatives and the range of permissible penalties, the proper sentence to be imposed." Commonwealth v. Martin, 466 Pa. 118, 130, 351 A.2d 650, 656 (1976). Usually the sentence is left undisturbed on appeal because the lower court is in a far better position than an appellate court to weigh the factors involved in determining a proper sentence. Id., 466 Pa. at 131, 351 A.2d at 657. However, in making its determination the lower court must exercise its discretion within certain procedural limits. First: The court must have "sufficient and accurate information." Id., 466 Pa. at 131-32, 351 A.2d at 657. In order to obtain this information the court may order a pre-sentence investigation report, Pa.R.Crim.P. 1403 A(1); in certain cases, in fact, it must order such a report, or state of record why it did not, Pa.R.Crim.P. 1403 A(2). Also, the court must afford the defendant the opportunity to make a statement in his own behalf, and afford counsel, both for the defendant and the Commonwealth, the opportunity to present argument and information relative to the sentence. Pa.R.Crim.P. 1405(a). Second: The court must consider the defendant's individual characteristics and the circumstances of the particular offense, Commonwealth v. Martin, supra, and also the guidelines specified in the Sentencing Code, Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). And finally: In imposing sentence the court must state on the record its reasons for the sentence, Commonwealth v. Riggins, supra; see also Pa.R.Crim.P. 1405(b) (as amended 5/22/78), and advise the defendant of his right to appeal the sentence, Pa.R.Crim.P. 1405(c). If the court does not state its reasons for the sentence, the sentence will on appeal be vacated and the case remanded to afford the court an opportunity to resentence the defendant and to include a

[ 259 Pa. Super. Page 532]

    statement of reasons. Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, supra; Commonwealth v. Wertz, ...


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