No. 79 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Criminal Division, at Nos. 1700 and 1701 of 1979
William W. Boyd, Lancaster, for appellant.
Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
Brosky, Watkins and Montgomery, JJ.
[ 293 Pa. Super. Page 102]
Appellant, James M. Barrett, pleaded guilty to two counts of robbery. On November 15, 1979, he was sentenced to one to four years on the first robbery count and nine months to three years on the second robbery count. The sentences were to be served consecutively. Barrett filed a motion to modify his sentence in light of the fact that two co-defendants received lesser sentences through negotiated guilty plea agreements. The motion was denied. This appeal followed. We vacate Barrett's sentence and remand to the trial court for resentencing. Commonwealth v. Thurmond, 257 Pa. Super. 464, 390 A.2d 1330 (1978).
Barrett contends that the sentence he received is inconsistent with that received by his co-defendants. He further asserts that, that being so, the trial court erred in failing to state, in the record, its reasons for giving inconsistent sentences. We agree.
In Commonwealth v. Thurmond, supra, 257 Pa. Super. at 467, 390 A.2d at 1331, we said:
In order for a trial judge to impose different sentences on co-defendants, he must find differences between the co-defendants to justify the sentences. Commonwealth v. Fitzgerald, 101 Pa. Super. 308 (1931). This writer has said: "Probably nothing has corroded respect for the criminal justice system more than judicial indulgence in unexplained widely disparate sentences." Commonwealth v. Andrews, 248 Pa. Super. 1, 7, 373 A.2d 459, 462 (1977) (Dissenting Opinion by Spaeth, J.), allocutor granted.
In Commonwealth v. Andrews, 480 Pa. 484, 485, 391 A.2d 989, 989 (1978), our Supreme Court stated that the Superior Court's opinion was reversed and the judgments of sentence were "vacated and the record remanded to the trial court for consideration in light of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977)."
[ 293 Pa. Super. Page 103]
In the instant case, the trial court stated its reasons for sentencing, at some length. However, at no point in its statement was there any discussion regarding the disparity in sentences between Barrett and his two co-defendants. The trial court's statement discloses its knowledge that Barrett had not cooperated with the police when first questioned. However, this may have resulted from a misguided effort to help his co-defendants. Commonwealth v. Thurmond, supra., 257 Pa. Super. at 466, 390 A.2d at 1330. The trial court noted also that at the second robbery one of Barrett's co-defendants confronted the victim with a gun. While Barrett stood near the victim and the victim felt he may have had a gun, Barrett was shown not to have had a gun and not to have played an actively affirmative role in that robbery. In the other robbery, Barrett acted as a lookout. The court noted Barrett's age, 19, and his education, high school drop out, and that Barrett had come from a strictly disciplined family. The court also concluded that Barrett was probably more "passive, although a fully active participant along with" one of his co-defendants. And, then Barrett was sentenced. At no time in the court's formal statement of reasons for sentencing did it explain its reasons for Barrett's comparatively more severe sentence.
The record does, nevertheless, indicate also that the trial court was presented evidence as to what sentences Barrett's co-defendants received, that they cooperated with the Commonwealth, and that they agreed to testify against Barrett. The court knew something about the history of Barrett's relationship with his co-defendants. And, finally, the court was cognizant of the fact that Barrett's co-defendants had entered negotiated guilty pleas. However, the trial court never stated how these facts influenced its decision to ...