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COMMONWEALTH PENNSYLVANIA v. BRENDA THURMOND (07/27/79)

decided: July 27, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
BRENDA THURMOND, APPELLANT



No. 2416 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Monroe County Branch - Criminal, No. 129 October Term, 1975.

COUNSEL

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

Marc R. Wolfe, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ.

Author: Hoffman

[ 268 Pa. Super. Page 285]

Appellant, Brenda Thurmond, contends that the trial court imposed an excessively harsh sentence of imprisonment of 3 to 23 months and a fine of $500.00 while her co-defendant, on the same charges, received a sentence of 2 years probation and a fine of $2,000.00. Appellant argues that the court's belief that she had lied while testifying and her co-defendant's medical condition could not justify the disparity in sentences. We disagree and, accordingly, affirm the judgment of sentence.

On October 10, 1975, a jury convicted appellant and her brother, Jay Thurmond, of 2 counts each of gambling.*fn1 After denying post-verdict motions, the court imposed sentence.

[ 268 Pa. Super. Page 286]

Appellant appealed to this Court, asserting that the sentence she received was excessively harsh. We vacated sentence and remanded for a new sentencing hearing, at which the court was to place on the record its reasons for imposing different sentences for the 2 defendants. See Commonwealth v. Thurmond, 257 Pa. Super. 464, 390 A.2d 1330 (1978). On August 31, 1978, the court held a new hearing, after which it imposed the same sentence previously given. This appeal followed.

The evidence at trial showed that appellant worked as a part-time bartender and engaged in a gambling operation at a bar run by her brother. Two officers testified that they had seen appellant take part in prohibited gambling activities on two occasions. Appellant testified that she was not in the bar on the first occasion and was not tending bar, although present, on the second occasion. She denied any participation in the gambling activities. Her brother and co-defendant, who apparently directed the gambling operation, did not testify.

After the first sentencing hearing, the lower court based the sentence imposed on appellant on the fact that appellant had lied in her testimony and therefore showed poor prospects for rehabilitation. The court also considered, in favor of leniency, that appellant had a young child who needed the attention of its mother. On remand, the court stated on the record that it had based the disparity between appellant's sentence and that of her brother on the facts that appellant had lied in her testimony and that Jay Thurmond had a serious heart condition, it believed, made imprisonment impossible. The court stated that it had consulted and considered a sentencing report and was aware that appellant had no criminal record while her brother had 8 previous convictions for traffic offenses and assault and battery.

In exercising its discretion to sentence, a court may impose unequal sentences upon co-defendants when facts exist to justify the disparity. Commonwealth v. Burton, 451 Pa. 12, 301 A.2d 675 (1973). The health of one of the ...


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