filed: July 8, 1983.
COMMONWEALTH OF PENNSYLVANIA
ROBERT A. SMILLIE, APPELLANT
No. 980 Pittsburgh, 1981, Appeal from the Judgment of Sentence of September 3, 1981 In the Court of Common Pleas of Erie County, Criminal Division, No. 404 and 426 of 1981.
Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
Frank J. Scutella, Assistant District Attorney, Erie, for Commonwealth, appellee.
Cercone, P.j., Wieand and Beck, JJ.
[ 316 Pa. Super. Page 86]
Appellant Robert Smillie takes this direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Erie County on September 3, 1981 following his entry of guilty pleas to charges of burglary*fn1 and retail theft.*fn2 On appeal, he raises two issues for our resolution. First, appellant contends that the sentencing court did not adequately discharge its sentencing responsibilities as they are set forth in the Sentencing Code,*fn3 Pa.R.Crim.P. 1405(b) and supporting caselaw. Concurrently appellant charges that sentencing counsel was ineffective in failing to include, as a reason in support of his Motion for Reduction of Sentence, the failure of the sentencing court to state of record the reasons for the sentence imposed.*fn4 Second,
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appellant maintains that counsel rendered ineffective assistance as a consequence of his failure (a) to specifically object to the contents of the pre-sentence report; (b) to provide appellant with a summary of the contents of the pre-sentence report, thus depriving appellant of the meaningful exercise of his right to allocution as guaranteed by Pa.R.Crim.P. 1405(a); and (c) to assemble witnesses capable of testifying with respect to appellant's character and drug dependence. Discerning no merit in these claims, we affirm.
There is no doubt but that "[s]entencing is a matter within the sound discretion of the sentencing judge, to be exercised within the statutory guidelines and considerations. When so exercised, the sentence will not be disturbed by an appellate court unless it is so clearly excessive as to constitute an abuse of discretion." Commonwealth v. Hollerbush, 298 Pa. Superior Ct. 397, 406-07, 444 A.2d 1235, 1240 (1982).*fn5 In the case at bar, appellant argues not that the sentence imposed was excessive but rather that the sentencing court neglected to fulfill its obligation to place on the record the reasons supporting the sentence.*fn6
[ 316 Pa. Super. Page 88]
In his recent opinion in Commonwealth v. Edwards, 303 Pa. Superior Ct. 454, 450 A.2d 15 (1982), Judge Spaeth characterized the responsibilities of the sentencing judge as two-fold:
The first responsibility is a fact-finding responsibility: the judge must be sure he has enough information. The second responsibility is an application -- and -- explanation responsibility: the judge must apply to the information he has gathered the guidelines specified in the Sentencing Code, 42 Pa.C.S. § 9701 et seq., and explain how the sentence he has selected is responsive to, and reflects the standards embodied in, those guidelines. If the judge fails to fulfill these responsibilities, we must vacate the sentence and remand for resentencing. Id., 303 Pa. Superior at 472, 450 A.2d at 23-24.
The policy underlying the requirement that the sentencing judge state of record the reasons for the sentence is found in the desirability of making public the actual thought process leading to the imposition of a particular sentence. Commonwealth v. O'Brien, 282 Pa. Superior Ct. 193, 422 A.2d 894 (1980). This directive cloaks appellate courts with the means of comprehending and reviewing the actions of the sentencing court while, at the same time, discourages arbitrary sentencing and the entertainment of improper or
[ 316 Pa. Super. Page 89]
irrelevant factors. Commonwealth v. Kraft, 294 Pa. Superior Ct. 599, 440 A.2d 627 (1982).
Our courts have never required that the sentencing court's statement of reasons cite to specific language of the Sentencing Code. Commonwealth v. Wicks, supra. Instead, it should evince the court's reflection on the standards delineated in the Code and should offer "some explanation of how consideration of those guidelines affected the determination of sentence." Commonwealth v. Wareham, 259 Pa. Superior Ct. 527, 534, 393 A.2d 951, 954 (1978).
Our review of the sentencing proceedings leads us to conclude that the statement of reasons advanced by the lower court at the passing of sentence complies fully with the requirements of the Sentencing Code and the holding of Commonwealth v. Riggins, supra. The sentencing court enjoyed the benefit of a presentence report and the extensive remarks of attorneys for both the Commonwealth and the defense. In passing sentence, the lower court apparently accorded great weight to the fact that at the relatively young age of thirty years, appellant had experienced numerous encounters with the penal system during a period which in length approaches twenty years. Moreover, the court observed that from the facts presented in the pre-sentence report and the remarks of counsel, appellant's brushes with law enforcement authorities are traceable, ultimately, to his persistent abuse of drugs. The court noted further that appellant appeared incapable of resolving his drug problems himself and that, as a result, the interests of society as a whole mandated his incarceration. We believe that the sentencing court adequately explained its sentence and thus we perceive no merit in appellant's assertions to the contrary.*fn7
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We also dismiss as unsound appellant's charge that he was denied, for various reasons, the effective assistance of counsel during sentencing proceedings.*fn8 Our review of the record persuades us that the sentencing proceedings in the case at bar fully conform to the requirements of Pa.R.Crim.P. 1404*fn9 and the American Bar Association Standards Relating to Sentencing Alternatives and Procedures,*fn10
[ 316 Pa. Super. Page 91]
adopted by our Supreme Court in Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973). The record discloses, and appellant himself concedes, that sentencing counsel was afforded complete access to the contents of the pre-sentence report. Pa.R.Crim.P. 1404 does not require that a defendant be permitted to examine personally the report for inaccuracies. Commonwealth v. Kessinger, 295 Pa. Superior Ct. 258, 441 A.2d 758 (1982). Although appellant now complains that sentencing counsel did not object to the pre-sentence report, and did not fully inform him of the contents of the report, he does not specify in what respect the report was prejudicial or in what manner counsel's description of it was inadequate. In rejecting a similar claim in Commonwealth v. Smith, 250 Pa. Superior Ct. 537, 378 A.2d 1278 (1977), we stated:
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the report and then set out in his brief in what respect he contends the report prejudiced his client.
Id., 250 Pa. Superior at 543, 378 A.2d 1282.
Similarly, we reject appellant's assertion that he was denied the effective exercise of his right to allocution provided by Pa.R.Crim.P. 1405(a). The record reflects that appellant's sentencing counsel delivered a lengthy statement to the sentencing court prior to its passing of sentence in which he highlighted appellant's past criminal record, his history of drug abuse, appellant's apparent need for some type of drug rehabilitation treatment, and the fact that appellant had cooperated with the district attorney's office during its prosecution of the case. Appellant himself then brought to the court's attention the fact that he enjoys a good relationship with his parole officer, and that his recent marriage has had a positive effect on his life. Thus, it appears that appellant did in fact exercise his allocution rights, despite his current protestation that such exercise was futile. Again, appellant fails to demonstrate what additional matters he would have raised for the court's consideration during allocution had he been more completely informed as to the contents of the pre-sentence report.
Finally, we reject appellant's assertion that sentencing counsel was ineffective in failing to gather and present witnesses who would testify on appellant's behalf at the sentencing hearing. Appellant contends that he furnished counsel with the names of individuals who would testify as to his character and drug dependence. The record demonstrates, however, that sentencing counsel covered these very subjects in his statement to the court. In the absence of any proof that the testimony of these witnesses would yield more than more cumulative evidence as to matters which were adequately placed before the sentencing court, we are unwilling to regard sentencing counsel as ineffective for declining to present such testimony. "A finding of ineffectiveness can never be made unless it can be concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics
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actually utilized." Commonwealth v. Stokes, 294 Pa. Superior Ct. 529, 542, 440 A.2d 591, 598 (1982), citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
Judgment of sentence affirmed.