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December 16, 1983


No. 285 Harrisburg, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Perry County, No. 145 of 1981.

Before Wieand, Cirillo and Johnson, JJ. Cirillo, J., files a Memorandum Dissenting Opinion.

Author: Per Curiam

Per Curiam:

Judgment of sentence vacated, and case remanded for resentencing in accordance with the requirements of Pa.R.Crim.P. 1405(b).

CIRILLO, J., files a Memorandum Dissenting Opinion.


I respectfully dissent. It is apparent from the record that the mandate of Pa. R. Crim. P. 1405(b) has been satisfied, and to remand for resentencing would be a gross abuse of judicial time and resources.

The sentence in this case was imposed after the lower court had the benefit of reviewing a pre-sentence investigation report. Thus, the judge had full knowledge of the appellant's character and prior criminal activities. So too, both the appellant and his attorney were afforded the opportunity to speak on behalf of the appellant and to introduce any evidence which might have persuaded the court to be lenient in sentencing, but both declined. See: Commonwealth v. Curry, Pa. Super. , 465 A.2d 660 (1983). The argument that the lower court judge did not consider the character and condition of the appellant, therefore, is specious.

Likewise, the lower court gave a cogent reason for its rather lenient sentence, thereby enabling our Court to undertake effective appellate review.*fn1 The court considered the nature of the crime, the involvement of several individuals, and society's need to deter such conduct and to demonstrate how serious this crime is. A sentencing court's statement of reasons will not be deemed insufficient where it is plain that the court considered and applied the sentencing code, even though it makes no explicit reference to its guidelines. Commonwealth v. Wilson, Pa. Super. , 452 A.2d 772 (1982). In view of the judge's knowledge of the appellant and the circumstances surrounding the crime, I would find that the reasons in support of the sentence imposed are adequate under Pa. R. Crim. P. 1405(b).

The lower court Opinion notes, and the docket entries substantiate that the appellant was paroled on September 7, 1982. To remand this matter so that the court may supplement its reasons for the sentence imposed would be to exalt form over substance. Neither statutory nor case law requires such a practice. As our distinguished colleague, the Honorable John P. Hester, has succinctly stated:

... a remand is not necessary whenever it is apparent from the record that such would be "a mere procedural exercise." Grant, supra, i.e., no change in the sentence would result. See also, Commonwealth v. Senyszyn, Pa. Super. , 405 A.2d 535 (1979); Commonwealth v. Guenzer, 255 Pa. Super. 587, fn. 2, 389 A.2d 133, fn. 2 (1978).

Commonwealth v. Thomas, 278 Pa. Super. 39, 50, 419 A.2d 1344, 1350 (1980).

*fn1 Under the facts of this case, the appellant pleaded guilty to a misdemeanor of the second degree, 18 Pa. C.S.A. § 3903(b)(1), which is punishable by a maximum prison term of 2 years. 18 Pa. C.S.A. § 1104(2). The sentence imposed, 3 months to 23 1/2 months, is within statutory limits and should not be reversed absent an abuse of discretion or error of law. Commonwealth v. Palmer, Pa. Super. , 462 A.2d 755 (1983).

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