No. 327 January Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, June Term, 1979, Nos. 431-434
Flora L. Becker, Philadelphia (Court-appointed), for appellant.
Robert B. Lawler, Chief, Appeals Div., David Da Costa, Asst. Dist. Attys., Philadelphia, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix, J., concurs in result. McDermott, J., files a dissenting opinion in which Larsen, J., joins.
In this direct appeal from judgment of sentence, appellant, Pedro Antonio Alicea, raises the issue of whether the trial court erred at sentencing by considering appellant's initial defense of an alibi, withdrawn prior to trial, as warranting an increased sentence.*fn1
On the afternoon of April 4, 1978, appellant had an argument with the victim when the latter's bicycle was stolen. Shortly thereafter appellant purchased a .38 caliber revolver and proceeded to a neighborhood bar. He there encountered the victim who, upon seeing him at the door, exited the bar and walked up to appellant. Appellant shot the victim.*fn2 As a result of this single shot, the victim died approximately one month later.
Prior to trial appellant's counsel had filed a notice of alibi defense as required by Rule 305(C)(1)(a), Pa. R. Crim. P. The day before trial was to commence, however, he withdrew it.
At trial, appellant proceeded on a theory of self-defense. He testified that, at the time of their initial confrontation, the victim had threatened to kill both him and his family. He also testified that he knew the victim to be a violent person and that he purchased the gun out of fear the victim would make good his threats. At their second meeting, he said the victim approached him outside the bar and stated,
"You came so that I can kill you. I am going to kill you now." N.T. at 3.35. Thereupon, he testified, he shot the victim in self-defense.
The trial court, sitting as trier of fact, convicted appellant of possession of an instrument of crime*fn3 and of voluntary manslaughter.*fn4 He was sentenced to two and one half to five years imprisonment on the former, and four to ten years imprisonment on the latter. The sentences were to run concurrently. In imposing sentence the court stated:
I am clearly stating that I did not know anything about the alibi defense, and, of course, the pre-sentence investigators when they recommended probation for you did not know about the two stories you told -- I am not saying that I would have followed their recommendations completely, but I would have not given a sentence as long as I have given you.
The sentence that I would have given you would have been -- I am giving the total that you would have had to serve in jail -- not more than two years in jail -- excuse me, not less than two years in jail nor more than ten years in jail.
In effect, what you have gotten is an extra two years in jail on your minimum because of the lie perpetrated upon the Court and because I feel that your continual lying convinces me that you are not on your way toward the good life.
Without asserting that United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) is limited to federal sentencing practices and that Commonwealth v. Thurmond, 268 Pa. Super. Ct. 283, 407 A.2d 1357 (1979), is wrongly decided under Pennsylvania law, appellant distinguishes them and argues the court erred in considering the withdrawn alibi defense as evidence of perjury which would allow enhancement of sentence. We agree.
In Grayson the Supreme Court addressed the issue of whether a court could enhance a sentence based, in part, upon its first-hand observation of a defendant's false testimony at trial. The defendant in Grayson had escaped from a federal prison camp. His account of the flight and the reasons for it was contradicted by rebuttal evidence and by cross-examination of the defendant himself on crucial aspects of ...