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COMMONWEALTH PENNSYLVANIA v. MICHAEL KALSON (06/18/82)

filed: June 18, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL KALSON, APPELLANT



No. 53 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal, Luzerne County, No. 1520-B of 1980.

COUNSEL

Basil G. Russin, Public Defender, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Wickersham, Wieand and McEwen, JJ.

Author: Mcewen

[ 301 Pa. Super. Page 32]

Appellant here contends the sentence imposed by the Common Pleas Court of not less than two years nor more

[ 301 Pa. Super. Page 33]

    than four years for his escape from the County prison was manifestly excessive. We disagree and, therefore, affirm.

Appellant escaped from the Luzerne County Prison in Wilkes-Barre on April 5, 1980. He was subsequently apprehended. Within a few days, on April 20, 1980, he participated in an attempted escape from the same prison during which a prison guard was assaulted. The defendant was tried and convicted by a jury on October 17, 1980 for the offenses arising out of the attempted escape of April 20, 1980. While on trial for that attempted escape of April 20, the appellant again escaped from custody but was quickly apprehended. After his conviction, he pleaded guilty on October 20, 1980 to the first escape on April 5, 1980, and was sentenced on December 30, 1980 to the two to four year term of imprisonment we here review.

The crime for which the sentence was imposed is a felony of the third degree*fn1 and carries a maximum sentence of imprisonment of not more than seven years.*fn2 The record in the case for which the sentence we here review was imposed indicates the escape occurred when the appellant used some tools and a hydraulic jack from the carpenter shop of the prison to cut the lock on the supply room door and wedged the jack sufficiently under the door to permit escape through the door.

Appellant argues that the sentence is manifestly excessive when compared with other sentences imposed in Luzerne County for the same offense. That contention contravenes the traditional and well established practice of individualized sentencing. The American Bar Association Standards for Criminal Justice emphasize the importance of individualized sentencing, and consider an evaluation of the particular offense, as well as the offender, to be essential.*fn3 The Pennsylvania Supreme Court has stated:

[ 301 Pa. Super. Page 34]

The sentence must be imposed 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 defendant. See 18 Pa.C.S. § 1321(b) (Supp.1975). At least two factors are crucial to such determination -- the particular circumstances of the offense and the character of the defendant. Pa.R.C.P. § 1403(a)(2) provides that all pre-sentence reports shall include such information. We hold that regardless whether a pre-sentence report is ordered, the sentencing court must at least consider these two factors in a sentencing determination. Failure to give ...


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