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filed: March 28, 1980.


No. 48 March Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Union County, Pennsylvania, at No. 107 of 1974.


Mark J. Goldberg, Pittsburgh, for appellant.

Graham Showalter, District Attorney, Lewisburg, for Commonwealth, appellee.

Spaeth, Hester and Montgomery, JJ. Spaeth, J., files a concurring opinion.

Author: Per Curiam

[ 276 Pa. Super. Page 496]

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division of Union County, Pennsylvania, imposed at No. 107 of 1974. The procedural history and facts relevant to the issues on appeal are as follows:

On June 17, 1974 two officers of the Borough of Lewisburg Police Department stopped a van in which appellant was a passenger due to the fact that the driver, appellant's boyfriend, made an illegal "U" turn. He became very upset as he sat in the van while the officer wrote out a citation. He suddenly bolted out of the van with a club in his hand and a struggle ensued with the officers. At first, appellant remained in the van. Later, she got out and pleaded with the officers to stop hitting the driver. When this was unsuccessful, appellant struck one officer once on the back with a nun-chukas,*fn1 which she picked up from the ground. Appellant then kicked the other officer as he attempted to handcuff her. She was arrested without further incident. There were no serious injuries.

Appellant was indicted on charges of violation of 18 Pa. C.S.A. § 2702(a)(2) and (a)(3), both being aggravated assault charges, but 2702(a)(2) is a felony, while 2702(a)(3) is a misdemeanor of the first degree. Appellant was found guilty by a jury of aggravated assault under Section 2702(a)(3). Appellant was sentenced on April 28, 1975 to a term of imprisonment at the Industrial Home for Women at Muncy for not less than six nor more than 24 months.

On May 23, 1975, on motion of court appointed defense counsel, the trial court amended the sentence to provide that it be served in the Union County Jail. A timely appeal from the judgment of sentence was filed to this Court. On May 13, 1976, we affirmed the judgment of sentence. A petition for allowance of appeal was filed with our Supreme Court and allocatur was granted. On October 31, 1977, the Supreme Court vacated the judgment of sentence and remanded

[ 276 Pa. Super. Page 497]

    for resentencing because the "trial court failed to articulate a reason for the sentence imposed, reflecting that due consideration was given to the statutory sentencing guidelines." Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977). In discussing the matter of sentencing, the Supreme Court stated, at page 886:

"Appellant's counsel made specific reference to the provisions in the Sentencing Code which favor probation. In addition, at the sentencing modification proceeding, appellant's counsel directed the court's attention to 18 Pa. C.S.A. § 1321(b) (Supp.1977) which provides":

"In selecting from the alternatives set forth in subsection (a) of this section the court shall follow the general principle that the sentence imposed should call for the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant."

Despite counsel's argument and the existence of the statutory sentencing guidelines, the court sentenced appellant to a minimum of six months imprisonment and possible imprisonment of nearly two years. Appellant asserts, and the record reflects, that the trial judge failed to articulate reasons for the sentence imposed reflecting "weight" was accorded the statutory guidelines for sentencing.

"By the Court: I just can't imagine this happening. I can't imagine any young person that has lived in a free society such as the United States has to offer in a violation of this kind. A simple motor vehicle violation where your friend was just served with a citation. This would have meant if he would have had any complaint it could have been handled in a very democratic way. He could have had his day in court and would not have been involved in any way other than a possible fine, more than likely. . . . And yet both you and he, not only was this a matter of complaining to law enforcement officers, this was an act of violence toward them. I just can't imagine this. And I can't understand

[ 276 Pa. Super. Page 498]

    your boyfriend. That is my concern. I know very little about you. . . . The fact that you have not been involved with the law would lead me to believe that you could use your good judgment in respect to what happened on that day. I am not saying you might not have been disgusted, the fact your friend was being arrested, but to turn on a law enforcement officer is a mystery to me. And since it is, I know of no other solution but to punish you for it. I see no reason whatsoever.

I feel I have no alternative in this regard. I have to do it, because I must admit everything that has happened since this would lead me to believe Miss Kostka is not this kind of person. But, I can't imagine anyone doing this. It hasn't any sense at all.

I just can't, I don't know what you would do at some future time. I just can't. Well, I simply can't tolerate what you did . . . ." (emphasis added)

As these comments indicate, the trial court did not consider the relevant statutory provisions designed to guide its discretion. Although the probation guidelines in the Sentencing Code do not exclusively control the discretion of the trial court, the Code mandates that the grounds listed be "accorded weight." 18 Pa. C.S.A. § 1322 (Supp.1977). Nowhere in the record of the sentencing proceedings does it appear that the trial court considered these grounds. Nor did the trial court consider the section of the Sentencing Code governing situations where total, as opposed to partial, confinement is appropriate. Moreover, from the discussion which does appear on the record, it seems that the trial court improperly considered the conduct of the driver, appellant's boyfriend, in imposing the sentence of total confinement upon appellant.

In Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (plurality opinion), this Court considered important principles guiding the imposition of sentence. In Riggins, we held that a trial judge must articulate the reasons for the sentence selected and enumerated the reasons favoring

[ 276 Pa. Super. Page 499]

    such a requirement. Although, unlike the present case, the imposition of sentence in Riggins preceded the effective date of the new Sentencing Code, we there stated:

"The Legislature, in recognizing the need for sentencing guidelines, has enacted the Sentencing Code. Section 1321(a) of the Code provides for five possible dispositions-probation, guilt without further penalty, partial confinement, total confinement, and a fine. The Legislature has adopted the following basic policy to guide the trial court in imposing sentence: '[T]he sentence imposed should call for the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative need of the defendant.' The Legislature has also enumerated specific factors which the trial court should consider in determining which of the five possible dispositions is appropriate for a particular defendant. These factors provide the sentencing court with guidelines for the articulation of the reasons for its sentencing decision. Absent a statement of reasons, the record will not reveal whether the legislatively mandated factors have been considered." (footnotes omitted)

Id., 474 Pa. at 134, 377 A.2d at 149-50. See generally American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968).

Here the record does not reveal whether "the legislatively mandated factors have been considered." We therefore vacate the judgment of sentence and remand the case to afford the trial court an opportunity to consider the legislatively pronounced guidelines and to resentence appellant accordingly, including in the record a statement of reasons for the sentence imposed."

Appellant was resentenced by the trial court on January 30, 1978 to a term of imprisonment of not less than 6 months nor more than 23 months in the Union County Jail. This timely appeal was filed from that judgment of sentence.

[ 276 Pa. Super. Page 500]

During the colloquy which took place prior to the imposition of the second sentence, the trial court stated, in part:

"In considering an order of probation, your lack of a prior criminal record places this consideration on a very high priority. As a matter of plain fact, none of the other considerations for probation as is suggested by the sentencing code, and as applied to your case, carry as much weight as your lack of a prior criminal record. And I have said this to you before. On the other hand, I believe your conduct in this instance threatened serious harm to the law enforcement officers. You not only struck one officer in the back with two wooden clubs tied together at the end with a leather thong, while he was kneeling on the ground defenseless with his back toward you, you further kicked another officer in the groin with shoes containing heavy four inch wooden soles. It required the additional help of a civilian to have you handcuffed; and this occurred only upon the officer's direction that you were under arrest and to enter a motor vehicle. Now, if you had reflected, and I believe it was your duty to so reflect, before you attacked the officers, you would have realized your conduct could have threatened serious bodily harm. As your boyfriend's continued act of resisting the officers brought on their conduct, you should have had no provocation, as there had been nothing done by the officers which was directed toward you, or what you could reasonably have considered to have been excesses in their treatment of him. I am, therefore, of the belief that if this occurred upon such a simple event as Mr. Manuel's being stopped for a traffic violation, it could occur again.

I find nothing in the facts of the case which would excuse or justify your conduct, and, as I have stated before, I believe the jury was of the same opinion. The victims were merely doing their duty as law enforcement officers, and you, as a matter of fact, were interfering with the execution of that duty. The injury here was not solely to the officers, who fortunately suffered no broken bones, although one was personally of the opinion that the

[ 276 Pa. Super. Page 501]

    kick in the groin had contributed to the incapacity he now has as a result of an earlier injury, but, to society itself. It has been said that order is Heaven's first law, and all society suffers when order fails. This incident occurred in the very center of the borough of Lewisburg. It was a confrontation that involved not only physical violence to the officers, but was attended by the loud use of vile language toward them. A sizeable group of people were attracted to the scene because of the loud and vile language. Lewisburg is a University town, the home of Bucknell University, which institution brings 3,000 youths into the borough each year. Order and the respect for law enforcement is an integral part of this community's stability.

I, of course, know not whether you will commit this act again. There is no criminal record of impropriety since this offense. As I have said, the occasion which gave rise to your conduct was such a common event that I have serious doubt. And, you have done nothing to change your position as I view it. You remain substantially gainfully unemployed and an unproductive member of society. The record does not disclose a single act wherein you have been truly supportive of the society in which you live.

You made no expression of remorse at the scene or thereafter, and not until you came before this court for sentencing. Not one. There, your counsel suggested your appearance at the trial was one of remorse. I didn't see it that way. Therefore I cannot make a judgment about your ability to respond affirmatively to probationary treatment. Further the history of probation already clearly indicates that you can rehabilitate no one who does not want to be rehabilitated. As Immanuel Kant philosophized, "Legal punishment . . . never can be inflicted on a criminal himself or for civil society . . . for man may never be used just as a means to the ends of another."

[ 276 Pa. Super. Page 502]

Thus, I find the only compelling reason to order probation is your lack of a prior criminal record. Weighing against this would be the consideration of retribution. This word, of course, does not appear in the legislation. As close as the legislation ever comes to the use or the meaning of the word, outside of the actual penalties provided for in the criminal code, is as provided in ...

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