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COMMONWEALTH PENNSYLVANIA v. KEVIN GIFFIN (06/27/80)

filed: June 27, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN GIFFIN, APPELLANT



No. 23 April Term, 1978, APPEAL from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, Lawrence County, Pennsylvania, at No. 162A of 1977.

COUNSEL

William M. Panella, New Castle, for appellant.

Donald E. Williams, District Attorney, New Castle, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth, Hester and Watkins,*fn* JJ. Hoffman, J., files a concurring statement in which Spaeth, J., joins. Cercone, President Judge, and Price and Hester, JJ., filed dissenting statements. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Watkins

[ 279 Pa. Super. Page 265]

This is an appeal from the sentence of the Court of Common Pleas of Lawrence County, by the defendant-appellant, Kevin Giffin.

The defendant pled guilty to the charge of corrupting the morals of a minor on April 19, 1977. He was sentenced on July 19, 1977 to pay the costs of prosecution, a fine of $2500.00 and to undergo imprisonment for a term of not less than two (2) years nor more than five (5) years. He was given credit for thirty-two (32) days already served.

[ 279 Pa. Super. Page 266]

Defendant had been charged with statutory rape, three counts of prostitution, and corrupting the morals of minors. He was one of several males who had set up a thirteen year old female in various hotel rooms where she performed sexual favors for other men who paid the males for their liasons. Defendant pled guilty to corrupting the morals and one count of prostitution pursuant to a plea bargain whereby the statutory rape charges were nolle prossed and defendant was to give testimony against the other males involved in the above-described scheme. Defendant gave testimony against the co-defendants at preliminary hearings and before the Grand Jury. He then disappeared and had to be extradited from California. He waived extradition from California after being promised by the Lawrence County, Pennsylvania, District Attorney that the Commonwealth would abide by the original plea bargain. He was then returned to Pennsylvania where he was sentenced on July 19, 1977 as set forth above. At his sentencing, defendant claimed that he went to California because he had been shot at in Pennsylvania and was in fear for his life because of the co-operation he had given the police regarding the other participants in the prostitution scheme. Defendant now appeals his sentence claiming that it is so manifestly excessive as to constitute too severe a punishment and that it was unlawful because the court below failed to articulate the reasons justifying defendant's sentence. He appealed on July 26, 1977.

Generally, the imposition of a sentence by the court is a matter within the sound discretion of the trial court and will not be disturbed on appeal so long as it is within statutory limits. Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973). However, the sentencing court must at least consider the particular circumstances of facts and character of the defendant in its sentencing determination, and the failure to give such individualized consideration requires that the sentences be vacated. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). In Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), decided on August

[ 279 Pa. Super. Page 26717]

, 1977, the court held that the sentencing court should place its reasons for imposition of the particular sentence on the record. In the instant case the only reason for the sentence which the sentencing court placed on the record was that appearing in its opinion wherein the court stated: "By reason of his being the provocator in the corrupting of the morals of the minor involved and her participation in other offenses with other individuals, we were of the opinion that the defendant would be a risk to society unless a sentence of imprisonment was imposed. We were of the further opinion that he was in need of correctional treatment that could be most effectively provided by his commitment to a penal institution, and, in considering all of the offenses with which he was charged and in light of the plea bargain, the sentence imposed was proper." During both the sentencing colloquy and the plea colloquy, the defendant vigorously contested the finding that he was the provocator of the crimes and stated that he received only $2.00 as a result of the scheme. Moreover, the record of the plea colloquy does not reveal what prison term or fine the parties had agreed to or whether any such specific prison term or fine had been agreed to at all. The only plea arrangement appearing from the colloquy is that the defendant would plead guilty to corrupting the morals and prostitution, co-operate with the prosecutions of the other individuals involved in the scheme, and that the statutory rape charges would be nolle prossed. This offer was apparently made again to defendant in order to get him to waive extradition. At the sentencing colloquy the court failed to state the reasons for the sentence. Of course, the sentencing took place a month prior to the Supreme Court's decisions in ...


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