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COMMONWEALTH PENNSYLVANIA v. TERRENCE GALLAGHER (03/12/82)

filed: March 12, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
TERRENCE GALLAGHER, APPELLANT



No. 2273 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, at No. 1138 January, 1976.

COUNSEL

Gwanita Hester, Assistant Public Defender, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, submitted a brief on behalf of Commonwealth, appellee.

Wickersham, Popovich and Watkins, JJ. Popovich, J., files a dissenting opinion.

Author: Watkins

[ 296 Pa. Super. Page 384]

This is a direct appeal from the judgment of sentence after revocation of appellant's probation. Appellant, Terrence Gallagher, filed a timely petition for reconsideration of his sentence which was denied. We affirm the decision of the court below.

Two issues are raised by appellant out of the following set of facts. On February 26, 1980, after a Gagnon II hearing,*fn1 appellant's probation of seven years was revoked. During the sentencing colloquy, the following exchange occurred between the appellant and the sentencing court:

[Appellant] "MR. GALLAGHER: You know, you are just making a mockery out of justice.

THE COURT: I am?

MR. GALLAGHER: Yeah.

THE COURT: Well, just a minute. Come back here. I will add a little more time on to it.

I gave you three years and I will revoke that sentence. I will make it three and a half years to seven years.

[Appellant's Attorney] MR. O'DRISCOLL : Your Honor, if I might say that I think my client is in a distraught state. I would ask the Court to reconsider not adding anything additional to his sentence.

I think he is all raught (sic) up and I don't think that upon reflection he would say some of the things perhaps that he said to the Court.

[ 296 Pa. Super. Page 385]

THE COURT: That is a matter for him to decide and not for you, Mr. O'Driscoll. I am sure you would not say them.

MR. O'DRISCOLL: I would just ask, Your Honor --

MR. GALLAGHER: Your Honor, I think that the bitterness that I feel towards the justice system you know, I can't help that. I can't help being bitter about the way I feel towards you people.

THE COURT: That is all right.

MR. GALLAGHER: The justice system.

THE COURT: I gave you probation. I made a grave mistake then but I am trying to correct it just now.

MR. GALLAGHER: What in your opinion -- is it your honest opinion that prison is going to help me?

THE COURT: No, it isn't.

MR. GALLAGHER: Well, why don't you try to find something that is ...


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