NO. 66 PHILA. 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Monroe County, Criminal No. 172 Oct. Term 1977 and 116 Oct. Term 1979
Michael R. Muth, Public Defender, Stroudsburg, for appellant.
Elmer D. Christine, Jr., Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
Spaeth, President Judge, and Hester and Lipez, JJ.
[ 322 Pa. Super. Page 178]
This is an appeal from a judgment of sentence. Appellant argues that the sentencing judge in imposing the sentence considered information that was irrelevant. We agree, and therefore vacate the sentence and remand for resentencing.
On December 27, 1978, appellant was sentenced to a term of 3 1/2 to 7 years in prison for robbery. He had also been convicted of burglary and recklessly endangering another person, but sentence was suspended on those convictions. An appeal was filed challenging the sentencing proceedings.*fn1 Appellant claimed that the trial court had failed to comply with the sentencing guidelines, and had failed to state of record the reasons for the sentence. This court agreed and vacated the sentence and remanded for resentencing in accordance with the sentencing guidelines and Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140
[ 322 Pa. Super. Page 179]
(1977) (court must articulate of record reasons for sentence imposed). Commonwealth v. Stufflet, 291 Pa. Super. 516, 436 A.2d 235 (1981).
On remand, the trial court held a resentencing hearing, and on December 30, 1981, reinstated the previous sentence. On January 6, 1982, appellant filed this appeal, and on January 11th he filed a motion with the trial court for reconsideration of sentence, claiming that the court had considered irrelevant information. The court denied the motion,*fn2 and appellant now makes the same claim on appeal.*fn3
The events leading to appellant's conviction may be described as follows. Appellant and two other men entered a restaurant in Stroudsburg at approximately 1:30 a.m. on July 27, 1977. The two men with appellant locked the restaurant employees in a walk-in freezer while appellant ordered the manager, Carol Swalm, at gun-point, to open the safe. However, she could not open it. One of the two men then took her to a store room and raped her. The two men then forced her to leave the restaurant with them, but she got free and ran. At about that time, police officers arrived on the scene. They saw appellant leaving the restaurant with a stocking over his head and a gun in his hand, and arrested him.
At the resentencing hearing, after remand, the following colloquy occurred:
THE COURT: Here you have an armed robbery. You had a rape by one of them. You had the locking of people into a freezer; ...