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COMMONWEALTH PENNSYLVANIA v. KIRK FRAZIER (05/23/85)

argued: May 23, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
KIRK FRAZIER



APPEAL FROM THE JUDGMENT OF SENTENCE OCTOBER 31, 1984 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CRIMINAL NO. 84-03-2048

COUNSEL

Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Jeffrey P. Shender, Assistant Public Defender, Philadelphia, for appellee.

Cavanaugh, Cirillo and Hester, JJ. Hester, J., files a dissenting opinion.

Author: Cirillo

[ 347 Pa. Super. Page 66]

The Commonwealth of Pennsylvania appeals the sentence imposed by the trial court following non-jury trial in the Court of Common Pleas of Philadelphia County. We affirm.

The Honorable Victor J. Dinubile, Jr. found appellee guilty of attempted involuntary deviate sexual intercourse, unlawful restraint, corrupting the morals of a minor, indecent assault, and indecent exposure. Appellee was the stepfather of the victim. On the evening of the incident appellee accompanied the victim to the home of her grandmother. Upon arriving, appellee took the victim directly to the basement where he began to choke her and threatened to rape her. Appellee then forced the victim to commit an act of sodomy upon him. While still choking the victim, he then attempted to commit a similar act upon her. Immediately after the incident, appellee gave the victim a quarter to purchase a newspaper. The victim used the quarter to phone police, who arrested appellee shortly thereafter.

Following appellee's conviction, the trial judge postponed sentencing and ordered a presentence investigation and psychiatric evaluation. Subsequently, appellee was sentenced to a term of imprisonment of not less than 4 months nor more than 10 years for the attempted involuntary deviate sexual intercourse, and concurrent terms of 4 months to 2 years for unlawful restraint and corrupting the morals of a minor. Sentence was suspended on the remaining two counts. Following sentencing, the Commonwealth filed a timely motion for reconsideration of sentence. The motion was denied. Pursuant to 42 Pa.C.S. ยง 9781(b), the Commonwealth filed this appeal asserting two issues for this Court to consider. Appellant first argues that the trial judge failed to consider the "totality of the circumstances" when sentencing appellee. We find no merit in this argument.

The Sentencing Code requires: "In determining the sentence to be imposed, the court shall, except where a

[ 347 Pa. Super. Page 67]

    mandatory minimum applies, consider and select one or more of the following alternatives: (1) An order of probation; (2) a determination of guilt without further penalty; (3) partial confinement; (4) total confinement; (5) a fine." 42 Pa.C.S. 9721(a). When choosing from among these alternatives, the sentencing court must consider the particular circumstances of the offense and the character of the defendant in reaching its determination. Commonwealth v. Parrish, 340 Pa. Super. 528, 490 A.2d 905 (1985); Commonwealth v. Martin, 328 Pa. Super. 498, 477 A.2d 555 (1984). In addition, the sentence must be consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant. 42 Pa.C.S. 9721(b); Commonwealth v. Parrish, supra; Commonwealth v. Martin, supra. These are the standards that must be followed by the sentencing judge when selecting a sentencing alternative. Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1287 (1978); see also Commonwealth v. Royer, 328 Pa. Super. 60, 476 A.2d 453 (1984); Commonwealth v. Martin, supra.

The record reveals that the trial judge delayed sentencing after appellee's conviction, and ordered a presentence investigation and psychiatric evaluation to better determine a proper sentence. The trial judge reviewed both reports and at the sentencing hearing had the opportunity to consider arguments by counsel, observe appellee, and listen to the testimony of the victim's mother (appellee's wife). The trial judge also heard from appellee's sex-therapy counselor, who testified that appellee had made progress since his arrest:

Q. Do you feel there is hope?

A. The prognosis is very good, but I can appreciate that someone evaluating Mr. Frazier on a one-time basis, looking at his past history, would see a lot of trouble, but in the course of knowing Mr. Frazier now for six months or so, I see him working hard from his end to make this work, and ...


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