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COMMONWEALTH PENNSYLVANIA v. LUKE BARKSDALE (11/06/81)

November 6, 1981

COMMONWEALTH OF PENNSYLVANIA
v.
LUKE BARKSDALE, APPELLANT



No. 1114 Philadelphia, 1980, Appeal from Judgment of Sentence dated April 24, 1980, Court of Common Pleas, Criminal Trial Division, Philadelphia County, at Nos. 636, 638, 639, August Term 1979.

Before Cercone, P.j., Hester and Johnson, JJ.

MEMORANDUM OPINION:

Appellant pled guilty to charges of rape*fn1, unlawful restraint*fn2 and simple assault*fn3 on March 4, 1980. He was sentenced on April 24, 1980 to ten to twenty years for rape, two and one-half to five years for unlawful restraint and one to two years for simple assault, each to be served consecutively.

Appellant presents six issues on appeal: (1) merger of the unlawful restraint and simple assault charges, in violation of the prohibition against double jeopardy; (2) insufficient reasons articulated by the trial court for the imposition of the maximum sentences; (3) the lower court's denial of Appellant's Motions requesting sentence modification and challenging the validity of his guilty plea; (4) ineffective assistance of counsel; (5) voluntariness of the guilty plea; and (6) legality of the sentence. We find none of these issues to be of merit and affirm.

At the hearing at which the guilty plea colloquy was conducted, the following facts were established: On the evening of August 2, 1979, Edwina Baynes, age eighteen, was walking on the streets of Philadelphia when she was grabbed by Appellant and forced into the front seat of an automobile. The victim suffers from cerebral palsy, which has caused a loss of function in her right arm, an uneven gait, mild retardation and seizures. Appellant drove the victim to a vacant lot while the victim struggled to exit the vehicle and pleaded to be released. Once parked, Appellant began smothering her, and punched her in the face and choked her when she screamed and resisted. Appellant then vaginally raped her and after she refused his demand for oral intercourse, anally raped the victim. He then forced her into the backseat and again attempted to vaginally rape her. Appellant ultimately dozed off and the victim attempted to escape on several occasions, but was restrained each time by Appellant. She finally managed to exit the vehicle and alert authorities.

I.

Appellant contends that his convictions for unlawful restraint and simple assault merged into the rape conviction, therefore violating the provisions against double jeopardy by imposing multiple sentences on a conviction for a single criminal episode. While Appellant's statement of the law is accurate, the facts of the instant case indicate that separate and distinct acts by Appellant led to each of the convictions and their sentences. As stated in Commonwealth v. Wojciechowski, , Pa. Super.Ct. , , 426 A.2d 674, 677 (1981), quoting Commonwealth v. Olsen, 247 Pa. Super.Ct. 513, 521, 372 A.2d 1207, 1211 (1977), remanded on other grounds, 487 Pa. 499, 410 A.2d 299 (1980):

"Thus, in order for two crimes to merge, they must be part of the same act. Without this requirement, that is, if the words 'necessarily involve' did not include this idea, a defendant could never be sentenced for two counts of the same crime. 'Separate and different acts of the same nature performed at different times generally constitute separate offenses.' Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. at 106, 21 A.2d at 922, quoting 22 C.J.S. Criminal Law ยง 9. See Commonwealth ex rel. Burge v. Ashe, 168 Pa. Super. 271, 77 A.2d 725, cert. denied, 341 U.S. 928, 71 S.Ct. 795, 95 L.Ed. 1359 (1951)."

Therefore, it was not error to sentence Appellant separately for each conviction.

II.

The second issue concerns the sufficiency of the reasons for imposition of the maximum sentences, as articulated by the lower court.

It is settled law that Pennsylvania trial judges are vested with broad discretion in sentencing and that this court will not reverse a judgment of sentence unless an abuse of discretion is shown. Commonwealth v. Campolei, Pa. Super.Ct. , 425 A.2d 818 (1981), citing Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978). The judge must have accurate information including a presentence report when required, and must consider the character of the defendant and the particular circumstances of the offense. Commonwealth v. Youngkin, Pa. Super.Ct. , 427 A.2d 1356 (1981), citing Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). The judge must also make his reasons for imposition of a particular sentence clear on the record. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Youngkin, supra ; Commonwealth v. Campolei, supra.

After a thorough review of the provisions of the Sentencing Code,*fn4 the applicable case law and the record of the sentencing proceedings, we find that the lower court did take into account all required elements in regard to the sentences imposed, and did adequately state the reasons ...


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