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filed: May 29, 1981.


No. 308 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Mercer County, Pennsylvania, No. 364 Criminal, 1979


Robert G. Kochems, Mercer, for appellant.

Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.

Brosky, DiSalle and Shertz, JJ.

Author: Disalle

[ 287 Pa. Super. Page 432]

Appellant, Randy Allen Snair, pleaded guilty to the statutory rape*fn1 of a 12 year old girl. He was sentenced to 2 1/2 to 7 years imprisonment, and argues in this direct appeal that his sentence is excessive and that the sentencing judge did not comply with required sentencing procedures. He requests

[ 287 Pa. Super. Page 433]

    that we vacate the judgment of sentence and remand this case to the lower court so that he may be resentenced. We refuse to do so and will affirm the lower court.

The facts are as follows: At the time of the rape, appellant was 24 years old and married. The victim, 12 years old, was attempting to run away from home,*fn2 which she had left on Sunday, August 19, 1979. With the permission of a friend's*fn3 parent, the victim spent that night in a spare bedroom at the friend's home. The next day, at about 12:30 P.M., appellant spoke with the victim at the friend's home and told her she could stay at the house of his grandparents, who were on vacation. The victim accepted the offer and appellant secreted her to his grandparents' house in his truck. Appellant entered the house through a cellar window and admitted the victim into the house through the back door. A short time after entering the house appellant called the victim into a bedroom where he had sexual intercourse with her. The victim attempted to stop appellant but could not. After appellant had finished, the victim locked herself in the bathroom. Appellant cautioned the victim not to tell anyone about the incident because he was married and his wife was pregnant. Approximately one half-hour elapsed between the time appellant entered the house, raped the victim, and left.

Appellant claims that at his sentencing the judge failed to comport with the mandates of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), which require the sentencing judge to articulate on the record his reasons for the sentence, and Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), under which the sentencing court must give individualized consideration to the circumstances of the crime and the character of the defendant. We disagree.

The record establishes that the sentencing court considered the seriousness of the statutory rape offense in and

[ 287 Pa. Super. Page 434]

    of itself as a factor in sentencing appellant. This is a proper consideration under Section 1325(3) of the Sentencing Code:*fn4

The court shall impose a sentence of total confinement if . . . it is of the opinion that . . .

     a lesser sentence will depreciate the seriousness of the crime of the defendant.

See also Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976) (discussion of the seriousness of rape and statutory rape).

Without specifically referring thereto,*fn5 the lower court also considered factors listed in Section 1322 of the Sentencing Code.*fn6 The court obviously was concerned with

[ 287 Pa. Super. Page 435]

    the age disparity between appellant and the victim -- eight times drawing attention to the victim's age -- and the deleterious effect a rape can have on a 12 year old child. The court considered the victim's mental stability in light of the fact that she was a runaway child, and how this, in addition to her tender age, made her even more vulnerable. The court noted that it was appellant who initiated the crime by offering the victim asylum at his grandparents' home and that the victim did not consent to the act. Appellant's prior criminal record, his military record, his marital and familial relationships, his employment, and his personality were also considered by the court. (According to the pre-sentence investigation report, appellant was unemployed, immature, and impulsive.) Finally, the court considered imposing a sentence of probation or partial confinement, but dismissed these possibilities because of the crime involved and appellant's poor employment prospects. The court also explained its reasons for the length of appellant's sentence: the minimum was imposed because appellant did not have a serious prior criminal record, and the maximum was imposed to maintain supervision over him. We find, therefore, that the lower court did sentence appellant in accordance with the mandates of Martin and Riggins, supra.

Most disturbing to us, however, is appellant's claim that his sentence was excessive because, as he puts it, he committed "an act of indiscretion, not an act of violence." (Emphasis added.) We do not view the willful, sexual violation of a 12 year old child by a 24 year old man as an indiscretion. Even more appalling is appellant's argument that "[t]he girl was a runaway and . . . he believed she had had prior sexual experience." This attempt to justify his behavior staggers the imagination.

Appellant's 2 1/2 to 7 year sentence for luring an immature, ingenuous, and unsophisticated 12 year old child into his grandparents' home and there having sexual intercourse with her was hardly excessive. In our view, the circumstances of this case would easily support a much longer

[ 287 Pa. Super. Page 436]

    sentence and, indeed, the appellant should consider himself fortunate that the lower court accepted a plea to statutory rape rather than forcible rape, for which the maximum term of imprisonment is twenty years.*fn7 We believe that when a 24 year old man rapes a 12 year old child, and then attempts to rationalize his despicable act by spurious assertions, he has not demonstrated that appreciation of the gravity of his crime which might call for a lesser sentence.

Judgment of sentence affirmed.

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