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filed: June 18, 1982.


NO. 1010 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Monroe County, No. 691 of 1979.


Thomas A. Natishyn, Stroudsburg, for appellant.

James P. Gregor, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

Rowley, McEwen and Montemuro, JJ.

Author: Mcewen

[ 301 Pa. Super. Page 20]

We here review an appeal from a judgment of sentence in which the sole contention of appellant is that the sentence of the court to a term of imprisonment of two and one half years to five years upon a charge of aggravated assault was excessive. We do not agree and, accordingly, affirm.

The criminal justice system has received in recent years abundant attention from the society it is designed to serve and that attention, often displayed by distress, is ever so frequently directed to the subject of sentencing. There has even been a simultaneous, although unrelated, mandated revision -- more of the practices than of the principles -- of Pennsylvania law upon sentencing by not only the legislature but also by the Supreme Court. The eminent Pennsylvania

[ 301 Pa. Super. Page 21]

Supreme Court Justice Robert N. C. Nix, Jr., quite aptly noted in Commonwealth v. Cottle, 493 Pa. 377, 382-83, 426 A.2d 598, 600 (1981):

Traditionally, appellate courts in this jurisdiction have been reluctant to intrude upon the sentencing discretion of trial courts. We have long maintained that the appellate scope of review of the sentencing decision should be limited to sentences that exceeded the statutorily prescribed limits or sentences which were so manifestly excessive as to constitute a constitutionally impermissible sentence. This perception evolved from our adherence to the concept of individualized sentencing and the belief that the effectuation of that objective was best served by granting broad discretion to the sentencing courts. More recently, question has been raised as to the wisdom of conferring upon the sentencing court almost unlimited, unstructured and unreviewable discretion. Both the legislature and this court have been gravitating to a curtailment of the unlimited discretion originally entrusted to the sentencing court. (citations and footnotes omitted).

The Pennsylvania Supreme Court has rejected as improper sentences imposed in accordance with a pre-established policy or standard for a particular offense since Pennsylvania has long been committed to the philosophy of sentencing aimed to promote rehabilitation as well as to provide punishment. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). These dual aims may be achieved when a sentencing judge has broad discretion to "determine, among the sentencing alternatives and the range of permissible penalties, the proper sentence to be imposed." Id., 466 Pa. at 130, 351 A.2d at 656.

The Supreme Court in Martin made clear that the nature of the criminal act was not to be the sole basis for the determination of the length of sentence but that, in addition, inquiry was to be made into the character of the convicted individual and into any extenuating or mitigating circumstances, so as to enable the sentencing court to exercise its broad discretion in accordance with the applicable statutory requirements.

[ 301 Pa. Super. Page 22]

In the Martin opinion, the Supreme Court stated that it had earlier held in Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973), that when the trial court orders a presentence investigation report, defense counsel has a right to examine its contents before sentencing and, if he contests any portion, to offer evidence in rebuttal.*fn1

The Sentencing Code*fn2 delineates the sentencing alternatives*fn3 as (1) an order of probation; (2) a determination of

[ 301 Pa. Super. Page 23]

    guilt without further penalty; (3) partial confinement; (4) total confinement; and (5) a fine; and, while allowing a mingling of those alternatives, does by clear mandate declare that when selecting the alternative(s) to be imposed, "The court shall follow the general principle that the sentence to be imposed should cause confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community and the rehabilitative needs of the defendant."*fn4

Our Supreme Court observed in Martin, supra 466 Pa. at 130 n. 20, 351 A.2d at 656 n. 20, that this legislative mandate was a codification of the philosophy that ...

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