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COMMONWEALTH PENNSYLVANIA v. RAYMOND MARTIN (02/03/84)

filed: February 3, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
RAYMOND MARTIN, APPELLANT



No. 3117 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, No. 723-81.

COUNSEL

Francis M. Walsh, Assistant Public Defender, Norristown, for appellant.

J. William Ditter, III, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Cercone, President Judge, and Hester, Cavanaugh, Wickersham, Rowley, Wieand and Popovich, JJ. Wieand, J., concurs in the result. Popovich, J., filed a dissenting statement.

Author: Rowley

[ 328 Pa. Super. Page 500]

Appellant entered guilty pleas to one count each of robbery, burglary, theft, criminal conspiracy, terroristic threats and unlawful restraint. He was sentenced to a term of imprisonment for not less than two nor more than ten years on the burglary charge and a consecutive term of ten years

[ 328 Pa. Super. Page 501]

    probation for robbery. Sentence on all other counts was suspended. Appellant's motion for modification of sentence was denied without a hearing. He has filed a direct appeal to this court from the judgment of sentence.

The sole issue raised by appellant on appeal is whether "the sentence imposed [was] unduly harsh and excessive under the circumstances?" The case was scheduled for argument before the Court en banc to consider whether an excessive sentence claim also presents for our review, as a separate issue, the question whether the trial court "sufficiently articulate[d] his reasons for imposing sentence" pursuant to the Sentencing Code and Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). We affirm the judgment of sentence and hold that the excessiveness issue raised by appellant does not raise the sufficiency of the trial court's reasons for sentence as a separate and independent ground for relief.

I.

This court has held that the trial judge has broad discretion in imposing sentence. Commonwealth v. Rhodes, 272 Pa. Super. 546, 416 A.2d 1031 (1979); Commonwealth v. Johnson, 235 Pa. Super. 185, 340 A.2d 515 (1975). If the sentence imposed is within statutory limits, there is no abuse of discretion, unless the sentence is manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Garrison, 292 Pa. Super. 326, 437 A.2d 407 (1981); Commonwealth v. Shoemaker, 226 Pa. Super. 203, 313 A.2d 342 (1973). Absent an abuse of discretion, a sentence imposed by the trial court will not be disturbed on appeal. Commonwealth v. Gillespie, 290 Pa. Super. 336, 434 A.2d 781 (1981); Commonwealth v. Campolei, 284 Pa. Super. 291, 425 A.2d 818 (1981); Commonwealth v. Landi, 280 Pa. Super. 134, 421 A.2d 442 (1980).

In imposing sentence, the sentencing court must consider the particular circumstances of the offense and the character of the defendant in reaching its determination. Commonwealth v. Giffin, 279 Pa. Super. 264, 420 A.2d 1134

[ 328 Pa. Super. Page 502]

(1980); Commonwealth v. Goldbard, 276 Pa. Super. 193, 419 A.2d 161 (1980). That was done in this case.

A review of the entire record reveals the following facts. On January 18, 1981, at approximately 2:00 a.m., appellant and an accomplice entered the home of a seventy-three year old woman by breaking a basement window. The victim lived alone. In order to insure their isolation, appellant and his accomplice cut the telephone lines into the victim's home. Upon hearing noises coming from upstairs, the accomplice went upstairs and into the victim's bedroom. The accomplice told the victim to stay in bed and make no noise; he forcibly took a ring from her finger. Before departing, the burglars again told the victim not to move or make any noise and that someone would be downstairs listening to make sure she obeyed. In all, the victim was held in her bedroom for approximately two hours. Appellant and the accomplice stole approximately $20,000.00 worth of property, mostly jewelry and silverware. The victim has been unable to resume living in her home because of the fear created by the burglars.

At the time he committed these offenses, appellant was serving a five-year term of probation imposed after he had pled guilty to burglary in 1976. Prior to both the 1976 burglary and the present offense, appellant had been employed by the victims as a painter. After being permitted to enter and work in the victims' homes, he returned to burglarize them.

In addition to being familiar with the details of the offense the trial court was fully aware of appellant's background and character. The court had before it, and considered, a pre-sentence report to which no objection has been raised by appellant. The trial judge's comments show that he considered all of the factors relevant to the proper determination of a sentence: "the protection of the public, the gravity of the offense[s] as [they] relate to the impact on the life of the victim and on ...


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