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filed: August 24, 1979.


No. 1283 October Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 964-65, September Sessions, 1976.


John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a concurring and dissenting opinion. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 269 Pa. Super. Page 63]

Following a jury trial commenced on November 22, 1976, appellant was convicted of theft*fn1 and criminal conspiracy;*fn2 he was acquitted on a charge of burglary.*fn3 Post-trial motions were denied, and appellant was sentenced to terms of imprisonment of from two and one-half to five years on both the theft and the conspiracy convictions. The two sentences were to run consecutively.

In the instant appeal from that judgment of sentence, appellant contends that the court below committed error: (1) by instructing the jury that it could find appellant and his co-defendant guilty of conspiracy if they agreed to commit the theft after entry into the residence in question even though the indictment specified that the overt act of the conspiracy was the entry into the residence; (2) by denying appellant's motion for mistrial based upon allegedly improper comments made by the prosecutor during his summation to the jury; and (3) by refusing to permit defense counsel to cross-examine the complainant concerning her relationship with her boyfriend who allegedly gave the keys to her apartment to appellant and his co-conspirators. We find these contentions to be without merit. Two of appellant's co-conspirators, Wilmer Wilson and Larry Howzell, raised identical issues in their appeals to this court. We affirmed, per curiam, the decision of the lower court in both of these cases. Commonwealth v. Howzell, 257 Pa. Super. 607, 390 A.2d 292 (1978) (Allocatur Denied 3/22/79); Commonwealth v. Wilson, 257 Pa. Super. 621, 390 A.2d 300 (1978).

Appellant's final contention is that the court below committed error by imposing the maximum prison sentence

[ 269 Pa. Super. Page 64]

    solely on the basis of the criminal act without any consideration of appellant's character or any inquiry into possible mitigating circumstances. We agree with appellant that the court below improperly sentenced him, and therefore, we remand to the lower court for resentencing.

The following facts were adduced at trial. On September 6, 1976, at approximately 2:00 a. m., Mr. Robert Swope, neighbor to complainant Audrey Drayton, noticed that the kitchen light was on in Ms. Drayton's apartment, and that two men inside the apartment surreptitiously poked their heads out of the back door and back window of her apartment. Knowing that Ms. Drayton was on vacation out-of-town, Mr. Swope's wife alerted police as to the presence of the two men. Upon their arrival at the apartment, the police discovered appellant and co-defendants Wilson and Howzell inside. Co-defendant Wilson was standing in the hallway of the apartment. He was surrounded by numerous green trashbags filled with clothing and a large number of appliances. Appellant was discovered hiding in a bedroom closet, and co-defendant Howzell was discovered hiding behind a living room couch; another co-defendant, Thomas White, was arrested outside of the apartment. The apartment had been ransacked, and large amounts of clothing and appliances had been stuffed into suitcases as well as the green plastic bags. Ms. Drayton, lessee of the apartment, testified that she never met appellant and his co-defendants previously, and that they did not have her permission to be there. She also testified that she discovered that numerous articles were missing from her apartment upon her return from vacation. Appellant and his co-conspirators maintained that Ms. Drayton's boyfriend and sometime roommate, Will Goldsmith had told them that he was going to move, and gave the keys to them so that they could help move some of his belongings. Mr. Goldsmith was not available to testify at trial.

Appellant was sentenced by the Honorable James T. McDermott on February 28, 1977, to the maximum sentence (2 1/2-5 years imprisonment) on both the theft charge and the

[ 269 Pa. Super. Page 65]

    conspiracy charge. Appellant contends this sentence was improper because the court failed to take into account any factors other than the crime itself. Appellant particularly noted Judge McDermott's refusal to consult any pre-sentence reports. At the sentencing hearing, the following exchange took place:

"THE COURT: . . .

Does the Commonwealth move for sentencing?

MR. CARPENTER [Assistant District Attorney]: Yes, sir.

THE COURT: Very good.

The Court is not interested in a pre-sentence or psychiatric examination of the defendants, in view of the nature of the charges, the type of offenses for which they were actually convicted.

Suppose we call Marvin Mathis to the bar of the Court. . . .

On Bill 964, charging you with criminal conspiracy, the sentence of the Court is 2 1/2 to 5 years in the ...

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