No. 1596 October Term 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Div., Criminal Section, for the County of Phila., at No. 800, July Term, 1976 M.C. Nos. 76-01-2716/2718
Nicholas A. Clemente, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for the Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Van der Voort, J., joins in the majority opinion by Spaeth, J. Price, J., files a concurring opinion in which Van der Voort, J., joins. Jacobs, J., former President Judge, did not participate in the consideration or decision of this case.
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Appellant was convicted by a judge sitting without a jury of statutory rape, involuntary deviate sexual intercourse, and on three counts of corrupting the morals of minors. He was sentenced to prison for terms of 11 1/2 to 23 months on one count of corrupting the morals of a minor and to 6 1/2 to 13 months on the other two counts of corrupting. The two 6 1/2 to 13 month sentences were concurrent with each other but consecutive to the 11 1/2 to 23 month sentence. Appellant was also sentenced to two five year terms of probation on the statutory rape and involuntary deviate sexual intercourse convictions. The sentences of probation were concurrent with the prison sentences. Appellant's petition to reconsider his sentences was denied by the trial judge and he appealed to this court. Pending disposition of the appeal, the sentences were stayed.
On appeal appellant argued (1) that the evidence was insufficient to sustain his conviction of involuntary deviate sexual intercourse and (2) that the sentences were manifestly excessive. On March 16, 1979, this court entered on order affirming appellant's convictions but remanding for a reconsideration of the sentences imposed. In the opinion accompanying this order we rejected appellant's argument that the evidence was insufficient to sustain his conviction of involuntary deviate sexual intercourse, and stated that we were remanding for resentencing because the record then before us contained no statement of reasons for the sentences, as required by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).
On April 2, 1979, the Commonwealth petitioned this court to reconsider the order of vacation and remand. In its petition the Commonwealth alleged that at the sentencing hearing, which was on April 21, 1977, the trial judge had stated the reasons for the sentences, but that the transcript
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of that hearing had not been included in the record transmitted to this court on appeal. We stayed the order of vacation and remand, and instead remanded so that the record, if incomplete, might be completed. The lower court thereupon included the missing sentencing transcript, and the record was returned to this court.
On July 18, 1979, we granted the Commonwealth's petition for reconsideration of our order of vacation and remand, and granted appellant and the Commonwealth leave to file new briefs on the sentencing issue within thirty days. Now, with a complete record before us, we shall consider appellant's claim that his sentences were excessive. However, since our earlier opinion has not been published, we shall first say why we rejected appellant's argument that the evidence was insufficient to sustain his conviction of involuntary deviate sexual intercourse.
The evidence may be stated as follows: In June 1975, Carolyn, a thirteen year old, went with her friend Sue to the Osborne Apartments in Philadelphia to see appellant concerning a summer job. Appellant gave the girls the job of cleaning and dusting the hallways of the apartment house. He paid them five dollars for their work, and also gave them cigarettes and soda. When Carolyn and Sue returned to the apartment house the next day, appellant offered them ten dollars to engage in a sexual act with him. They refused but on a subsequent visit appellant had the girls remove their clothes and committed oral sex with them. He paid them five dollars for this. He also engaged in sexual intercourse with Carolyn on several different occasions during that same summer, and gave her money, cigarettes, and a bottle of Vodka. On other occasions appellant had Carolyn, Sue, and other girls from the area in his apartment to view some sexually explicit movies. These other girls were Donna, age thirteen, Linda, age fifteen, and Judy, age thirteen. Carolyn, Donna, Linda, and Judy all testified concerning these incidents.
In testing the sufficiency of evidence, we first accept as true all the evidence upon which the finder of fact could
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have reached its verdict, and then, after giving the Commonwealth the benefit of all reasonable inferences arising from that evidence, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Williams, 468 Pa. 357, 365, 362 A.2d 244, 248 (1976); Commonwealth v. Carbonetto, 455 Pa. 93, 314 A.2d 304 (1974); Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973); Commonwealth v. Jacobs, 247 Pa. Super. 373, 372 A.2d 873 (1977).
Appellant does not dispute the evidence that he engaged with the girls in the acts that have been described above but argues instead that at least with respect to Carolyn the deviate sexual acts were not involuntary. In support of this argument appellant emphasizes the evidence that Carolyn was paid for what she did and that she voluntarily returned to the apartment many times to receive money, cigarettes, and liquor.
While it is true that there was no evidence demonstrating that any of the girls was coerced by appellant, this does not aid appellant's argument because proof of coercion was not necessary. The Crimes Code provides that "[a] person commits a felony of the first degree when he engages in deviate sexual intercourse with another person . . . who is less than 16 years of age." The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S. § 3123(5) (emphasis added). Since Carolyn was only thirteen years of age, the fact that she may have consented to engaging in sexual acts with appellant does not preclude appellant's conviction for involuntary deviate sexual intercourse. See Commonwealth v. Hughlett, 249 Pa. Super. 341, 378 A.2d 326 (1977).
In Commonwealth v. Wicks, 265 Pa. Super. 305, 401 A.2d 1223 (1979), this court summarized the several responsibilities of a judge when imposing sentence. We said:
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Under the Pennsylvania system of indeterminate sentencing, "[i]mposition of a proper sentence is a matter vested in the sound discretion of the trial court, whose determination is to be respected unless it constitutes a manifest abuse of discretion." Commonwealth v. Valentin, 259 Pa. Super. 496, 499-500, 393 A.2d 935, 937 (1978); see Commonwealth v. Knight, 479 Pa. 209, 212, 387 A.2d 1297, 1299; Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). In imposing sentence the court "must not overlook pertinent facts, disregard the force of the evidence, commit an error of law . . . or inflict punishment exceeding that prescribed by statute." Commonwealth v. Knight, supra, 479 Pa. at 212, 387 A.2d at 1299; see Commonwealth v. Lee, 450 Pa. 152, 299 A.2d 640 (1973). The court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. See The Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, 18 Pa.C.S. § 1321(b) (Supp.1977); Commonwealth v. Knight, supra; Commonwealth v. Riggins, supra. [474 Pa. 115, 377 A.2d 140 (1977)].
In Commonwealth v. Riggins, supra, the Supreme Court of Pennsylvania held that to further compliance with these principles, the lower court must state on the record its reasons for the sentence imposed. See Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Bolyard, 256 Pa. Super. 57, 389 A.2d 598 (1978). Thus in Commonwealth v. Kostka, supra, the Court vacated the sentence and remanded for resentencing because "the trial judge failed to articulate reasons for the sentence imposed reflecting 'weight' was accorded the statutory guidelines for sentencing." 475 Pa. at 90, 379 A.2d at 887. (emphasis added).
Id., 265 Pa. Super. at 311, 401 A.2d at 1225-26.
Accordingly, we must determine whether here the sentencing judge fulfilled these responsibilities.
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The first responsibility of the sentencing judge was to be sure that he had before him sufficient information to enable him to make a determination of the circumstances of the offense and the character of the defendant. Commonwealth v. Wicks, supra.
With respect to the circumstances of the offense: The evidence at trial disclosed that appellant showed sexually explicit movies to several girls and had sexual intercourse and deviate sexual relations with at least one of them for gifts of money, cigarettes, and liquor. While appellant argued at sentencing that his culpability was not great because the girls were or acted like prostitutes, the sentencing judge was free to reject this explanation.
With respect to the character of the defendant: The sentencing judge had the benefit of a full presentence report and two psychiatric reports regarding appellant's personality.
The presentence report contained some information that reflected very favorably on appellant's character, including the facts that although 57 years old, he had never been arrested; that he had been decorated during the Second World War; that he had a steady employment record; and that through his industriousness he had put himself through night school, obtained a real estate license, and amassed a considerable fortune and several real estate holdings, among them the Osborne Apartments. The report also discussed in some detail appellant's marital history. He was in his third marriage; the other two had ended in divorce. The author of the report offered the opinion that appellant's offense reflected inability to accept the aging process, and ...