No. 200 March Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, York County, at Nos. 350 and 382 CA 1978.
John J. Moran, II, Assistant Public Defender, York, for appellant.
Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Montgomery, JJ.
[ 306 Pa. Super. Page 373]
This is a direct appeal from the judgment of sentence imposed by the Court of Common Pleas of York County on September 5, 1978.
[ 306 Pa. Super. Page 374]
On July 18, 1978, appellant entered pleas of guilty to the charges of aggravated assault, kidnapping, rape and involuntary deviate sexual intercourse. On September 5, 1978, appellant was sentenced to imprisonment in a state correctional institution for a term of not less than ten (10) nor more than twenty (20) years for each count of kidnapping, rape and involuntary deviate sexual intercourse in Criminal Action No. 382 of 1978. The sentence was to run concurrently with respect to each count. On the charge of aggravated assault entered in Criminal Action No. 350 of 1978, appellant was ordered to serve a prison term of five (5) to ten (10) years. This period of internment was to run consecutively with that imposed in Criminal Action No. 382 of 1978. On September 15, 1978, counsel for appellant in Action No. 350 filed a petition for reconsideration of the punishment levied by the court for aggravated assault. By an order dated October 11, 1978, the court indicated its unwillingness to modify the terms of that sentence although it did agree to alter the order in which the sentences in Nos. 382 and 350 would be served.
The facts surrounding appellant's arrest for aggravated assault are not at issue and are deserving of only the briefest recitation. On March 3, 1978, appellant accosted Dian J. Burkhart of Emigsville, Pennsylvania in the parking lot of the York Mall located on East Market Street in York, Pennsylvania. Appellant compelled Ms. Burkhart at knifepoint to drive him in her car for a short distance to at a location several hundred yards from the Sprigettsbury Township Police Department. During the period in which appellant was in the vehicle, Ms. Burkhart was forced to commit fellatio upon appellant. In addition, upon parking the automobile, appellant forcibly involved the victim in other deviate sexual acts which culminated, ultimately, in the rape of Ms. Burkhart. After the rape, appellant surrendered his knife to the victim, alighted from the automobile and fled from the scene.
On March 14, 1978, while walking along a sidewalk in York, Pennsylvania, appellant was stopped by Shirley Stambaugh
[ 306 Pa. Super. Page 375]
who asked him for assistance in locating a parking meter which had been enshrouded by a recent snowfall. After offering some suggestions to Ms. Stambaugh, appellant pushed the woman through the open door of her automobile and onto its front seat where he brandished a paring knife before the victim's face. Ms. Stambaugh's screams commanded the attention of a local businessman and a youth who were then passing by this scene on the sidewalk next to the victim's car. These individuals summoned the police and attempted to subdue appellant. During the fracas which accompanied appellant's capture, appellant inadvertently inflicted a gash on Ms. Stambaugh's neck with the knife. The commission of these offenses followed closely on the heels of appellant's pre-release from a Community Work Program. Appellant participated in the program after having served a brief portion of a ten (10) year sentence imposed for appellant's perpetration of a series of sexual crimes in 1974.
Appellant now seeks relief from the lower court's imposition of a five (5) to ten (10) year term of incarceration for aggravated assault in No. 350 which was to run consecutive to the sentence imposed in No. 382. He denounces the sentence as violative of the sentencing guidelines in that it is injudiciously harsh, unsupported by the evidence on the record, and inconsistent with both the character of appellant and the nature of the offense. For the reasons advanced infra, we now conclude that appellant's argument is without merit and hold that the lower court acted within the ...