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COMMONWEALTH PENNSYLVANIA v. PHILIP VELEZ (02/14/84)

submitted: February 14, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
PHILIP VELEZ, APPELLANT



No. 02609 Philadelphia, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northampton County at No. 82 through 88, 1983

COUNSEL

Robert J. Liptak, Bethlehem, for appellant.

Michael Vedomsky, Assistant District Attorney, Easton, for Commonwealth, appellee.

Cavanaugh, Cirillo and Watkins, JJ. Cirillo, J., filed dissenting opinion.

Author: Cavanaugh

[ 329 Pa. Super. Page 15]

This is an appeal from judgment of sentence. Appellant argues, on appeal, that the sentencing court erred in (1) not

[ 329 Pa. Super. Page 16]

    placing on the record the reasons for the disparity between appellant's sentence and his co-defendants' sentences, and (2) considering inaccurate facts and by not giving defendant's individual circumstances adequate consideration. We agree that appellant's first contention of error may have merit, and therefore remand for reconsideration of sentence, thus not reaching appellant's second contention of error.

Appellant was sentenced on various criminal charges on September 7, 1983, by the Honorable Michael Franciosa. The sentences of appellant's co-defendants*fn1 as well as the identity of the sentencing judge of these co-defendants, do not appear on the sentencing hearing transcript. In addition, we cannot ascertain these facts from any part of the record on appeal. In the absence of these facts, we find that remand is appropriate, as the sentencing judge may have failed to state the reasons for disparity of sentence, if any, among co-defendants pursuant to Commonwealth v. Sinwell, 311 Pa. Super. 419, 457 A.2d 957 (1983); Commonwealth v. Thurmond, 257 Pa. Super. 464, 390 A.2d 1330 (1978); and Commonwealth v. McQuaid, 273 Pa. Super. 600, 417 A.2d 1210 (1980).

The above cited cases hold that in order for a trial judge to impose different sentences on co-defendants, he must find differences between the co-defendants to justify the sentences. Commonwealth v. Sinwell, supra 311 Pa. Super. at 427, 457 A.2d at 960; Commonwealth v. McQuaid, supra 273 Pa. Super. at 611, 417 A.2d at 1216; Commonwealth v. Thurmond, supra 257 Pa. Super. at 467, 390 A.2d at 1331. The reason that one co-defendant receives a more severe sentence than another must be stated on the record. Commonwealth v. Sinwell, supra, Commonwealth v. McQuaid, supra.

In the instant case, not only are we unable to discern the identity of the co-defendants' sentencing judge from the

[ 329 Pa. Super. Page 17]

    record, we are also unable to discern whether appellant did, in fact, receive a disparate sentence in relation to his co-defendants because the sentencing hearing transcript does not refer to the co-defendants' sentences. The sole mention of appellant's co-defendants, which is at all relevant to appellant's contention herein, is in the guilty plea colloquy where Investigator Doyle, a Commonwealth witness, testified that the co-defendants had already been convicted or offered to plead. However, we cannot glean from the record, whether the co-defendants had actually been sentenced at the time appellant was sentenced. Without this information, ...


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