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COMMONWEALTH PENNSYLVANIA v. WILLIAM TATUM (03/21/80)

SUPERIOR COURT OF PENNSYLVANIA


March 21, 1980

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM TATUM, APPELLANT

No. 1835 October Term, 1978, Appeal from Revocation of Probation and Judgment of Sentence of Stanziani, J., dated May 31, 1978 at No. 4094-76, in the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division.

Before Cercone, P.j., Watkins And Hoffman, JJ.

Per Curiam:

Revocation of probation and judgment of sentence affirmed on the opinion of Judge Stanziani.

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA VS. WILLIAM TATUM

No. 4094-76

STANZIANI, J., August 30, 1978:

SUMMARY

On March 9, 1977, defendant William Tatum pled guilty before the undersigned to resisting arrest and operating a motor vehicle while under the influence of alcohol and was sentenced to two years probation and costs of $200.00. On May 31, 1978, the defendant again appeared before this Court for a probation violation hearing and was thereafter sentenced to undergo imprisonment for not less than one nor more than two years. Defendant was now entered an appeal claiming that this sentence was unduly harsh and severe.

FACTS

At the probation violation hearing on May 31, 1978, the following charges were presented to this Court by the Commonwealth:

1. Defendant was arrested by County Detectives on March 23, 1978 in the Montgomery County Courthouse and charged with aggravated assault, simple assault, and resisting arrest.

2. Defendant was held in Indirect Contempt of Court by Judge Mason Avrigian.

3. Defendant failed to submit probation reports by mail as directed.

4. Defendant failed to report an arrest to his probation officer.

5. Defendant failed to pay court ordered support payments totaling $1,000 up until April 27, 1978.

With respect to the last three charges defendant acknowledged that he did not report by mail in January, February, March and April of 1978. Nor did he report his arrest on March 23, 1978. Defendant claims that he "forgot" his probation was for a two year period. Instead he thought his probation was for only one year and that his reports were no longer necessary because he had not received the periodic return mail report form from the Probation Office. With respect to his failure to make support payments to his family during the past eleven months, defendant claims he had been forced to reduce his payments because he had remarried and his income had dropped during the last year.

As a result of his arrearage in support payments, defendant was ordered to appear for a support hearing before a domestic relations officer on March 23, 1978. When defendant was unable to offer a satisfactory amount to reduce his deficit of $995.00, the officer told him that he would have to be bound over for court action before Judge Avrigian who was hearing support matters that day. At this point defendant became insolent and abusive. He started making boisterous remarks regarding the "injustice" of his situation. These remarks agitated others in the group of persons who had also been held for court action. Deputies Durante and Falterbauer, who were on duty in the domestic relations office, called for additional assistance to escort this group from the domestic relations office across the street to the Courthouse. Deputies Nave and Amoroso responded to this call and met the group in the hall outside the domestic relations office. During this period defendant continued making profane and belligerent remarks to the deputies, in particular, and regarding the proceedings, in general. On several occasions in the elevator and as the group crossed the street the deputies told the defendant to be quiet and express his feelings to Judge Avrigian.

After entering the courtroom defendant was seated on a bench where he continued muttering and making audible remarks loud enough to be heard throughout the chamber. These remarks were directed at the rulings of the court in other cases, but were apparently not noticed by Judge Avrigian due to the crowded condition in the courtroom and the proceedings to which he was addressing his attention. After one ruling, defendant stated that the Judge "didn't know what the f... he was talking about." When Deputy Amoroso again told the defendant to keep quiet while in the courtroom, defendant responded by calling the deputy a profane name. Deputy Amoroso then escorted a prisoner into the courtroom and seated him on the same bench with the defendant. Despite several warnings from Deputy Amoroso, defendant persisted in talking to the prisoner and at one point tried to pass a note to him. Finally, Deputy Amoroso requested permission from the Court to remove the defendant to prevent further interference with his prisoner and disruption of the courtroom. With the Court's permission, Deputy Amoroso told the defendant he was in custody and was going down to a detention area to await his support hearing. Deputies Amoroso, Durante, Falterbauer and Nave then removed the defendant from his seat and lead him from the courtroom.

As the deputies proceeded up the hall to the elevators, they were required to foreceably usher the defendant who was struggling against them. As he approached the elevators, defendant said, "You f... ing guys can't handle me, the three of you couldn't handle me. I'm a construction worker. The three of you couldn't handle me." Defendant then threw his left knee into Deputy Amoroso, knocking off his grip. He swung his right hand around and caught Deputy Amoroso in the side of the head with a karate chop, knocking off his glasses. Defendant began swinging wildly as the other deputies tried to subdue him. Momentarily stunned, Deputy Amoroso recovered, took out his blackjack, and struck the defendant on his head. The defendant went down on one knee, but rose again still swinging. Deputy Amoroso hit him again on the head with the blackjack but defendant continued to struggle. At this point Deputy Schatz came from another courtroom to assist. He grabbed the defendant and both men lost their balance and fell, the defendant landing on Deputy Schatz's leg which was fractured in the process. As the defendant attempted to rise, Deputy Amoroso swung his blackjack a third time but missed. Other deputies arrived on the scene and finally five of them managed to restrain and handcuff the defendant. During the fight Deputy Durante was struck and Deputy Falterbauer was struck and bitten by the defendant. Deputy Boggs was also kicked in the shoulder by defendant after defendant had been wrestled to the floor and was being handcuffed by the other deputies.

Defendant was thereafter arrested, arraigned and incarcerated in the Montgomery County Prison pending a contempt hearing before Judge Avrigian which took place on March 28, 1978. At that hearing the court ruled that, "... the testimony and the events before me certainly substantiate an indirect criminal contempt of an order of the Court," and issued an order finding "That the Defendant is in Indirect Criminal Contempt of Court..." Com. v. William Tatum, 179, Sept. Term, 1964, Transcript of Notes of Testimony, Tuesday, 3/28/78, p. 33.*fn1 On the same day, defendant was brought before District Justice Francis J. Lawrence for a preliminary hearing, at which time a prima facie case was established on various assault charges arising from the fight in the Courthouse on March 23, 1978. On March 31, 1978, defendant was released on bail, but he failed to report his arrest to his probation officer until May 17, 1978 when he received a notice of his probation violation. Defendant then reported to his probation officer and paid the $200.00 costs which had been imposed as a condition of his probation back on March 9, 1977. On May 31, 1978, after a probation violation hearing, defendant was sentenced to one to two years' incarceration on his original sentence.

ISSUE

In light of all the facts and circumstances, was the sentence of one to two years' imprisonment unduly harsh and severe?

Discussion

Imposition of sentence lies strictly within the sole discretion of the trial judge. Commonwealth v. Knighton, Pa. Superior Ct. , 380 A.2d 789 (1977); Commonwealth v. Olsen, 247 Pa. Superior Ct. 513 (1977). This broad discretion will not be disturbed unless: "1) the sentence exceeds the statutorily prescribed limits; or 2) the sentence is manifestly excessive; or 3) the court's discretion was not exercised in accordance with applicable statutory requirements." [citations omitted]. Commonwealth v. Smith, 247 Pa. Superior Ct. 36, 38-39 (1977). Defendant originally pled guilty to violations of Section 3731, Driving under the Influence of Alcohol, of the Pennsylvania Vehicle Code, and Section 5104, Resisting Arrest, of the Pennsylvania Crimes Code. Violation of the first section constitutes a misdemeanor of the third degree punishable by not more than one year in jail. 18 C.P.S.A. § 1104(3). A violation of the second provision is a misdemeanor of the second degree punishable by not more than two years' imprisonment. 18 C.P.S.A. § 1104(2). At the time of his quilty plea, defendant's sentence of the Vehicle Code violation was suspended and he was sentenced to two years probation on the charges of resisting arrest. If a defendant is sentenced, but the judge chooses to suspend sentence pending a period of probation, the trial judge may resentence the defendant if he violates that probation but the maximum period of resentence is limited to the maximum term under which the defendant was originally sentenced. Commonwealth v. Cole, 222 Pa. Superior Ct. 229 (1972). Accordingly, the one to two year sentence imposed by this court did not exceed the maximum term permissible under the statutory provisions to which defendant pled guilty.

This court also notes that Section 1371(c) of the Sentencing Code, 18 Pa. C.S.A. § 1301 et seq., provides that the court shall not impose a sentence of total confinement upon revocation of probation except when the conduct of the defendant indicates that he is likely to commit another crime unless he is imprisoned. We also note that the focus of the probation violation hearing, even though prompted by an arrest, is whether the conduct of the probationer indicates that the probation has proven to be an effective vehicle to accomplish rehabilitation and a sufficient deterrent against anti-social conduct. Commonwealth v. Kates, 452 Pa. 102 (1973). When it becomes apparent that the probationary order is not serving this desired end, the court's discretion to impose a more appropriate sanction should not be fettered. Commonwealth v. Davis, 234 Pa. Superior Ct. 31 (1975).

The facts established at the probation violation hearing demonstrate that defendant failed to comply with the most minimal administrative requirements of his probation. It is simply impossible for this court to believe that defendant "forgot" his probation was for two years instead of one year. Even if we were so incredulous as to accept this story, defendant still failed to report to his probation officer in January, February, and March of 1978 during his first year of probation. Moreover, on four separate occasions during his sentencing on March 9, 1977 defendant was informed that he was being placed on two years probation and at that time he stated that he understood and accepted that sentence. Defendant also failed to report his arrest on March 23, 1978 and failed to pay the $200.00 costs upon which his probation was conditioned until May 17, 1978. The purpose of probation is to afford an individual with the opportunity to show that he can conduct himself as a responsible and productive member of society. Defendant's failure to comply with the technical administrative conditions of his probation clearly illustrate that he is not able to assume responsibility for even the most minimal standards of conduct.

Defendant originally pled guilty to resisting arrest in 1977. The reoccurrence of the exact same offense in 1978 in the Courthouse of this county, with attendant injuries to sheriffs of this court, is a clear indication that defendant's probation is not an effective deterrent against future anti-social conduct. At the hearing this court found the defendant to be a willful, defiant man who displayed resentment and an unwillingness to accept his responsibility as a citizen to obey the law if he felt that he could justify doing otherwise. This particular incident demonstrates that defendant retains an especially belligerent attitude toward police officials. It is clear that if more restrictive measures are not imposed there is a distinct possibility that defendant will become involved in further incidents of this nature. Having carefully considered the foregoing facts and circumstances as required by Commonwealth v. Riggins, 474 Pa. 115 (1977), this court concludes that the defendant is unlikely to respond affirmatively to additional probationary treatment, that there is a substantial risk of future anti-social conduct, that defendant is in need of correctional treatment which can best be provided by commitment to an institution, and any lesser sentence would tend to deprecate the seriousness of the offense.

This court is aware of and sympathetic to the fact that defendant's wife suffers from a serious illness. Defendant, however, should have considered her needs and condition before violating his probation. His failure to do so only provides further indication of his irresponsibility, and her condition cannot now be used as an excuse for his conduct or a justification for avoiding the responsibility of his thoughtless and vicious conduct. Hopefully his period of confinement will give the defendant an opportunity to reflect on his past conduct and enable him to channel his future behavior in a socially acceptable manner.

Accordingly, this Court finds no abuse of discretion in revoking defendant's probation and concludes that the sentence imposed was entirely appropriate.

BY THE COURT:

Notice of the above mailed to the following on 8/30/78:

Bert M. Goodman, Esq., ADA George B. Ditter, Esq., APD


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