Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

COMMONWEALTH PENNSYLVANIA v. MISAEL CRUZ (05/28/81)

submitted: May 28, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
MISAEL CRUZ, APPELLANT



No. 2440 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northampton County, No. 905 of 1980.

COUNSEL

Stanley M. Vasiliadis, Assistant Public Defender, Bethlehem, for appellant.

Donald B. Corriere, District Attorney, Easton, for Commonwealth, appellee.

Wickersham, Beck and McEwen, JJ.

Author: Beck

[ 291 Pa. Super. Page 488]

Appellant pleaded guilty, on a negotiated plea, to Aggravated Assault, 18 Pa.C.S. § 2702(a)(1). The charges arose out of an incident in which appellant entered a restaurant carrying a wooden shovel handle and struck at and hit the victim, causing him contusions on the forearm. Appellant claimed*fn1 that the victim had threatened him. He claimed, therefore, that he attacked the victim as a preemptive strike, solely out of fear of the victim and his friends.

Appellant was sentenced, on October 10, 1980, to serve a minimum of one and a maximum of three years in a state correctional institution. An Application for Reconsideration of Sentence was denied, and this appeal followed.

Appellant does not challenge the validity of his guilty plea, and appeals solely on the basis of his claim that the sentence is excessive and was not imposed in accordance with the statutory requirements. Appellant asserts that the sentencing judge failed to follow the directive of 42 Pa.C.S. § 9722 directing that weight be accorded certain factors in favor of probation.

The Sentencing Code, 42 Pa.C.S. § 9701 et seq. and Chapter 1400 of the Pennsylvania Rules of Criminal Procedure control the procedure by which sentences are imposed.

[ 291 Pa. Super. Page 489]

Within those confines, it is recognized that the sentencing judge has broad sentencing discretion. Commonwealth v. Landi, 280 Pa. Super. 134, 421 A.2d 442 (1980) and cases cited therein. If the statutory mandates enacted to assure considered and informed sentencing have been followed, this court may review the sentence only to ensure that there has not been an abuse of the wide discretion accorded the sentencing court. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978). If the sentencing judge did not follow the Sentencing Code, then this court may not guess the result if the obligatory procedures had been followed, and must remand for resentencing. Commonwealth v. Butch, 487 Pa. 30, 307 A.2d 1302 (1979); Commonwealth v. Bryner, 285 Pa. Super. 305, 427 A.2d 236 (1981).

In the instant case, the sentencing court had before it a comprehensive pre-sentence report and was informed as to circumstances surrounding the crime, the physical and mental condition of the defendant, defendant's showing of a lack of any prior criminal record, and defendant's conduct during the pre-trial period of incarceration. Nonetheless, the only statement made by the sentencing judge as to the basis for sentence was:

"The reasons for the sentence that I have just imposed are that a lesser sentence would unduly depreciate the seriousness of the offense with which the defendant is charged. Secondly, his conduct . . . was of a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.