No. 1988 October Term, 1978, Appeal from Order entered June 9, 1978 of the Court of Common Pleas, Criminal Division of Lackawanna County to No. 1302 A to I of 1977.
Robert T. Gownley, Jr., Assistant Public Defender, Lackawanna, for appellant.
Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn* Spaeth, J., files a dissenting opinion.
[ 296 Pa. Super. Page 290]
Appellant has appealed an order of the lower court denying his motion for reconsideration of sentence. Appellant contends on appeal, as he did below in support of his motion, that the sentence imposed upon him was manifestly excessive and thus constituted an abuse of the lower court's discretion. We affirm.
On May 10, 1977, Appellant, then a juvenile seventeen years of age, was arrested and charged in a series of juvenile petitions with two counts of robbery, five counts of burglary and two counts of criminal attempt. On May 21, 1977, following a certification hearing, Appellant's cases were transferred by the juvenile court to the criminal division for trial. Appellant was thereafter indicted on all charges by a grand jury and the cases were listed for trial.
[ 296 Pa. Super. Page 291]
On January 26, 1978, Appellant pleaded guilty to the indictments and on May 12, 1978, following the preparation of a Presentence Investigation Report, Appellant was sentenced to serve a term of imprisonment of six months to one year upon each of the five counts of burglary and one to two years upon each of the two counts of robbery. All sentences were ordered by the court to be served consecutively, resulting in a total period of confinement of 4 1/2 to 9 years.
The record of the guilty plea proceeding indicates that Appellant, while engaged in what is best characterized as a "crime spree", was an active participant in a series of burglaries and robberies committed in Lackawanna County during a five-day period. In the first of these incidents, Appellant and a co-defendant twice burglarized a used car lot on the same day, and removed an automobile and other property following each entry. Again, on the same day, Appellant and his co-defendant committed an armed robbery at a service station. During the course of the robbery, Appellant held a rifle or sawed-off shotgun to an attendant's head while removing approximately $350 from the station. Yet again on the same day, Appellant burglarized a drive-in restaurant, and his co-defendant removed property valued at more than $250. On the following day, Appellant and others burglarized an automobile dealership and stole another automobile along with cash and other property. Again, on the same day, Appellant and a co-defendant attempted to rob another service station. Appellant was armed with a 12-gauge shotgun and wore a disguise. The service station attendant refused to comply with a demand for money, causing Appellant to apparently "freeze", and both thereupon fled.
During the same period, the record reveals that Appellant attempted to burglarize a drug store, burglarized a mobile home, causing extensive damage, and stole another automobile. Appellant's activity during this "spree" resulted in the return of nine separate indictments, containing sixteen counts and charging Appellant, inter alia, with the theft of many thousands of dollars in movable property.
[ 296 Pa. Super. Page 292]
As we have observed, Appellant was sentenced to a total period of confinement of 4 1/2 to 9 years upon his pleas to five counts of burglary, two counts of robbery and one count of attempted burglary. The remaining counts that did not merge were the subject of a nolle prosequi.
Our scope of review when confronted by a challenge to the severity of a sentence is well known and has been oft-repeated. Where no statutorily mandated sentence is implicated, trial judges in this Commonwealth are vested with broad discretion in sentencing. We will not disturb a judgment of sentence unless an abuse of discretion is shown, and in order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be manifestly excessive. Commonwealth v. Cottle, 493 Pa. 377, 426 A.2d 598 (1981); Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Campolei, 284 Pa. Super. 291, 425 A.2d 818 (1981); Commonwealth v. Michenfelder, 268 Pa. Super. 424, 408 A.2d 860 (1979). In addition, at the date the instant sentences were imposed, the court was required by the Sentencing Code to impose a sentence for the "minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the ...