No. 2864 PHILADELPHIA, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northampton County, No. 1179-1980.
Anthony Peter Daniel, Easton, for appellant.
Donald B. Corriere, District Attorney, Easton, for Commonwealth, appellee.
Hester, Cavanaugh and Cirillo, JJ.
[ 306 Pa. Super. Page 392]
Appellant, Richard Parry, Jr., was charged with kidnapping, unlawful restraint, robbery, involuntary deviate sexual intercourse, aggravated assault, and conspiracy. On September 19, 1980, after a trial by jury, appellant was found guilty of all of the above charges with the exception of kidnapping. Post-verdict motions for a new trial and in arrest of judgment were denied and dismissed. Appellant was thereafter sentenced to a term of incarceration of not less than four (4) years nor more than eight (8) years. The sentencing court denied appellant's petition for reconsideration of sentence on October 15, 1981. This appeal ensued.
The facts which led to the prosecution and conviction in this case are as follows. On March 26, 1980, appellant and three others picked up the victim, a slightly retarded young man who had been hitchhiking. Appellant and co-defendant, Carl Hoffman, forced the victim to perform involuntary deviate sexual intercourse at gunpoint. The victim was subsequently robbed, severely beaten and kicked in the body and head, and left nude, face down in a roadside puddle.
Appellant's sole concern on this direct appeal is his sentence. He contends that the sentencing judge abused his discretion when his sentence is compared to the sentences received by the other actors involved in this affair. Co-defendant Hoffman, who was the principal actor and who had an extensive criminal record, received the same sentence as appellant. Two other co-defendants, who respectively pleaded guilty and nolo contendere to unlawful restraint, were sentenced to six to twenty-three months imprisonment with
[ 306 Pa. Super. Page 393]
immediate work release eligibility. Appellant argues that since both he and Hoffman received identical sentences, the sentencing judge failed to adhere to the philosophy of individual sentencing as mandated by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and as codified by the Sentencing Code, Act of December 30, 1974, P.L. 1052, No. 345, 18 Pa.C.S.A. § 1321(b), as amended October 5, 1980, P.L. 693, No. 142, 42 Pa.C.S.A. § 9701 et seq. Moreover, he asserts that his right to equal protection of the law was violated when the sentencing judge imposed disparate sentences upon himself and the two other similarly situated co-defendants.*fn1
Imposition of a proper sentence is firmly settled to be within the sound discretion of the lower court, and we will not disturb the sentence on appeal absent a manifest abuse of discretion. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). The procedure of indeterminate sentencing as employed in this Commonwealth requires the sentencing judge to weigh the varying factors of each case, including the particular circumstances of the offense and the characteristics of the defendant. Commonwealth v. Jezorwski, 280 Pa. Super. 178, 421 A.2d 464 (1980). In formulating the sentence, the lower court should impose the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitation needs of the defendant. Commonwealth v. Martin, supra; 42 Pa.C.S.A. § 9721(b).
In the instant case, the sentencing judge was also the trial judge and consequently was fully versed in the facts surrounding the offense. After the trial, he received a thorough presentence investigation report on the character of appellant. In fashioning appellant's sentence, the trial judge considered that ...