No. 02302 Philadelphia 1982, Appeal from the Judgment of Sentence of July 20, 1982 in the Court of Common Pleas of Tioga County, Criminal Division, No. 67 & 67A of 1982, No. 02450 Philadelphia 1982, 02451 Philadelphia 1982, Appeal from the Judgment of Sentence of July 20, 1982 in the Court of Common Pleas of Tioga County, Criminal Division, No. 77 & 77A Criminal
Robert E. Dalton, Public Defender, Wellsboro, for appellant.
James E. Carlson, District Attorney, Wellsboro, for Commonwealth, appellee.
Spaeth, President Judge, and Beck and Tamilia, JJ. Spaeth, President Judge, files a concurring opinion.
[ 332 Pa. Super. Page 243]
This consolidated appeal arises out of one incident involving two defendants and a double homicide. Appellants, James Michael Button and Roger Button, entered pleas of guilty to two counts each of murder generally. The degree of guilt was set by the court at first degree in both instances and each appellant was sentenced to two consecutive life terms. Sentences on appellants' pleas of guilty to robbery and conspiracy charges were suspended pending the outcome of the appeals on the homicide convictions. Appellants now challenge all aspects of the ordered disposition and in so doing raise two issues of first impression in this Commonwealth.
On the evening of February 11, 1982 appellants perpetrated the bludgeoning deaths of Ross Cummings and Robert Southard, both disabled, and aged 74 and 59 respectively. The main purpose of the act was to obtain money, but the deaths of the victims were anticipated and in fact planned to prevent identification, as evidenced by Roger Button's prior statement of intent made to an acquaintance. Appellants had in the past performed day labor for the victims, knew their habits and lay in wait for them to arrive at the barn where they were to be killed.
Appellants' initial attack upon the sentences imposed is mounted against the extent to which the court may interpret sentencing law in fashioning an appropriate penalty.
Abuse of discretion in sentencing is defined in terms of either a manifestly excessive sentence or one which exceeds the prescribed statutory limit. Commonwealth v.
[ 332 Pa. Super. Page 244]
We may derive some guidance too from the fact that in at least seven other jurisdictions*fn1 consecutive life sentences have been imposed without challenge, and that in two other jurisdictions such sentences have withstood constitutional attack. Crawford v. State, 236 Ga. 491, 224 S.E.2d 365 (1976); Chavigny v. State, 163 So.2d 47 (1964) Fla.App.
Further, despite the obvious limitations dictated by human mortality, there is no statutory provision restricting the length of possible sentences. As the ABA Standards Relating to Sentencing Alternatives and Procedures (Approved Draft 1968) observes:
It is very rare for there to be a legislative ceiling on the sentences which may be piled on top of each other. It is the rule rather than the exception that there is literally no limit to the term which can be imposed on the multiple offender. Id. at 174.
In short, the uniqueness of the statutory homicide provisions, which in appellants' view limits the flexibility of the court in pronouncing sentence, refers only to the type of penalty deemed appropriate by the legislature. Beyond this the court's discretion is subject to no limitation other than that inherent in the term "manifestly excessive" which is inapplicable here. In fact,
where the statute provides that the punishment for murder may be death, life imprisonment or imprisonment for a term not less than a specified number of years, a
[ 332 Pa. Super. Page 246]
sentence for a definite term may be fixed without reference to the expectancy of life of the accused, and may be for a period not only in excess of his life expectancy but even beyond the extent of the human span of life; and this is true not withstanding the sentence has the affect of depriving the accused of the benefits of laws relative to probation and parole and not withstanding the objection that it cannot be served within the accused's life time. 41 C.J.S. Homicide § 433.
The actuarial tables of life expectancy have no application in the determination of a mandatory life sentence, as the ultimate crime, according to the legislative scheme, demands punishment stripped of all rehabilitative beneficence. The sentence, then, cannot be said to go beyond the bounds of legislative intent or judicial prerogative. Nor is it, as appellants further argue, excessive vis-a-vis the offenses for which, and the offenders on whom, it was imposed.
Appellants' further argument that the court took insufficient notice of their disadvantaged backgrounds, ages, etc., in fashioning the penalties is somewhat facticious considering the available alternative. It is precisely because the court imposed life sentences rather than ordering the death penalty that due consideration of mitigating factors is quite adequately demonstrated by the trial court. Having found first degree murder to have been committed*fn2 not once but twice, the trial judge was compelled to sentence on each conviction and to choose one of only two options. By indirect but pointed reference the trial judge indicated his familiarity with and adherence to the provisions of the statutes applicable in the case before him, and the evidence of individualization which led him to choose life over death as appropriate for appellants' sentence. Commonwealth v. ...