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decided: July 27, 1979.


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.


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 defendants is a valid consideration in imposing sentence.

[ 268 Pa. Super. Page 287]

    the defendant has willfully offered false testimony, the fact that the testimony was untrue does not of itself show that the defendant is not likely to respond to efforts at rehabilitation. Second, the misstatement must be material, not of marginal importance. Id. Only material falsehoods sufficiently bear on a defendant's character to justify enhancing punishment. Third, the verdict of guilt must necessarily establish that the defendant lied, not merely that the jury did not believe his testimony. See United States v. Hendrix, 505 F.2d 1233 (2d Cir. 1974), cert. den. 423 U.S. 897, 96 S.Ct. 199, 46 L.Ed.2d 130 (1975); United States v. Moore, 484 F.2d 1284 (4th Cir. 1973) (CRAVEN, J., concurring). This requirement ensures that a defendant can receive a stiffer penalty based on giving false testimony only when the finder of fact has determined, beyond a reasonable doubt, that the testimony was willfully false. Fourth, the verdict must be supported by sufficient credible evidence. If the jury's verdict is to form the basis for enhancement of sentence, that verdict must have a rational foundation in evidence of record. Cf. e. g., Commonwealth v. Horne, 479 Pa. 496, 388 A.2d 1040 (1978) (conviction must be supported by sufficient credible evidence). Fifth, the trial court, if not acting as the trier of fact, must observe the testimony allegedly false. See Grayson, supra. The cold record of the testimony and the verdict affords a meager basis for the sentencing court to determine whether the defendant's testimony demonstrated a character not likely susceptible to rehabilitation. Finally, the court may consider the defendant's lying only as one fact among many bearing on sentence. See Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978).

All these requirements were met here. First, appellant's misstatements were willful. She did not assert an inability to recollect, lack of certainty or reveal any other fact indicating that the falsity of her testimony is attributable to other than a willful decision to give false testimony. Second, the misstatements were material, concerning the necessary elements of her presence at the bar at the time of

[ 268 Pa. Super. Page 289]

    the crimes and her participation in the gambling. Third, the verdict necessarily established that she lied. Her testimony directly contradicted that of the officers who observed the crimes. Indeed, appellant admitted at the second hearing that the jury could have convicted her only if it believed that she had lied. Fourth, the testimony of the officers, identifying appellant and describing her activities, justified the jury's verdict and disbelief of appellant's contradictory testimony.*fn2 Fifth, the trial court observed appellant's testimony, and therefore was in a position to temper the implication of the jury's verdict that appellant had lied. Lastly, the court considered appellant's false testimony only in light of other information relevant to its determination of a proper sentence.

The court considered appellant's special circumstances, imposed a sentence well below that allowed by statute*fn3 and stated its reasons for doing so. We conclude that appellant's sentence, neither standing alone nor compared to that of her co-defendant, was so harsh as to amount to an abuse of discretion. See Commonwealth v. Knight, supra.*fn4

Judgment of sentence affirmed.

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