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COMMONWEALTH PENNSYLVANIA v. NICOLA A. PRIMAVERA. (02/05/82)

SUPERIOR COURT OF PENNSYLVANIA


February 5, 1982

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
NICOLA A. PRIMAVERA.

No. 486 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, May Term, 1980, Nos. 2483 and 2488, and June Term, 1980, No. 1188.

Before Brosky, Popovich and Montgomery, JJ. Popovich, J., files a memorandum concurring statement.

MEMORANDUM

Defendant Nicola A. Primavera pleaded guilty to three separate charges of robbery before the Honorable Abraham J. Gafni. Following completion of a presentence investigation, he was sentenced to concurrent sentences of five years psychiatric probation. Following the denial of its Motion to Modify Sentence, the Commonwealth filed this appeal, pursuant to section 5(d) of the Act of November 26, 1978, P.L. 1316, No. 319 (hereafter referred to as "Act 319") (Section 5 of Act 319 appears as a Note following 42 Pa.C.S.A. § 2155).

The basic issue on appeal is whether the sentencing court erred in sentencing Primavera to probation, rather than imprisonment.*fn1 Section 5(a) of Act 319 establishes an interim guideline for use in sentencing certain repeat offenders. Since Primavera had been convicted of robbery in New York in 1965, this section is applicable to him. The relevant portion of Act 319 provides:

... the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum term of not less than four years imprisonment.

Act of November 26, 1978, P.L. 1316, No. 319, § 5(a).

Act 319 also sets forth the standard for appellate review. If a sentence is outside the guideline, we must vacate the sentence if it is "unreasonable." Otherwise, we must "affirm the sentence imposed by the sentencing court." Act of November 26, 1978, P.L. 1316, No. 319, § 5(e).

We note at the outset that Act 319 does not provide for mandatory sentencing of repeat offenders. It provides a guideline only and recognizes that a sentence can be outside that guideline and still be acceptable under the Act as long as the sentence is reasonable.

We do not believe this Act changes the basic structure of sentencing in Pennsylvania, which gives individualized consideration to the facts and circumstances of the particular case and the particular defendant involved. Commonwealth v. Giffin, 279 Pa. Super. Ct. 264, 420 A.2d 1134 (1980). This consideration is most appropriately within the sound discretion of the sentencing court and great deference will be given to that court's determinations, since it is in a far better position to weigh the various factors involved in deciding on an appropriate sentence. Commonwealth v. Pauze, 265 Pa. Super. Ct. 155, 401 A.2d 848 (1979). As long as the court considers this guideline, along with the other factors enumerated in the Sentencing Code, 18 Pa.C.S.A. § 1301, et seq., we will not reverse absent a manifest abuse of discretion. Commonwealth v. Lee, 278 Pa. Super. Ct. 609, 420 A.2d 708 (1980).

The Commonwealth asserts that the nature of the criminal act mandates that the four-year-imprisonment guideline be followed. However, to impose a particular sentence solely on the basis of the nature of the criminal act would be error. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). On the other hand, the sentencing court in the instant case had before it a presentence investigation, a psychological evaluation ordered by the court, the testimony of the defendant's wife, records from the defendant's previous conviction, including records from the psychiatric hospital to which he was committed at that time, and certain reports prepared in connection with a federal court case pending at the same time. All of the current reports indicated very strongly that probation rather than incarceration was the appropriate penalty, considering the defendant's past history (he had had no arrests in the sixteen years since his New York conviction), his current family status (he was supporting his wife and her child), his age (46), the fact that he was now gainfully employed, and the fact that he was currently receiving psychological therapy in a rather rigid program.

It is abundantly clear that the sentencing court had before it sufficient and accurate information regarding this particular defendant and these particular offenses; that it considered the relevant guidelines of the Sentencing Act; that it considered the individual characteristics of this defendant; and the it stated on the record the reasons for its selection of this particular punishment. Commonwealth v. Brazzle, 272 Pa. Super. Ct. 438, 416 A.2d 536 (1979). Under these circumstances, we cannot say the sentence is unreasonable.

Affirmed.

POPOVICH, J., files a memorandum concurring statement.

The majority states that "to impose a particular sentence solely on the basis of the nature of the criminal act would be error." Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), Slip Opinion at 3 (emphasis added).

If the majority is reading Commonwealth v. Martin, supra, to mean that a court cannot impose a fixed period of incarceration or probation solely on the basis of the nature of the criminal act, I would agree. However, this writer notes that a court under Martin has the authority to impose a period of total confinement versus probation solely on the basis of the nature of the criminal act.

Because the majority's language, (i.e., "a particular sentence") in this writer's mind, can be read to mean that a court would error if it decided to impose total confinement versus the nature of a defendant's criminal act, I cannot subscribe to the majority's restatement of the law.


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