No. 01681 Phila., 1984, Appeal from the Judgment of Sentence of May 14, 1984 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 83-02-0149-153.
Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Jeffrey P. Shender, Philadelphia, for appellee.
Wieand, Watkins and Geisz,*fn* JJ. Wieand, J., concurs in the result.
[ 343 Pa. Super. Page 597]
This is an appeal by the Commonwealth from the imposition of sentence by the Court of Common Pleas of Philadelphia County in which the Commonwealth complains that the court below abused its discretion in sentencing the defendant-appellant, Allen Hutchinson, to five (5) years probation.
The facts of this case are very important: On January 6, 1984, the defendant was tried without a jury before the Honorable Michael E. Wallace. The evidence disclosed that three-year-old Alana Jackmon and her older brother, six-year-old T.H. Stiles, were visiting their grandmother, Dolores Edwards, during the weekend of November 11, 1982. Shortly after they arrived, Mrs. Edwards' nephew, William Jones, whom the children called Uncle Bully, took the children to his house to celebrate his son's birthday.
On the second night of their stay, Uncle Bully was working, Alana and T.H. were sleeping in the rear bedroom. T.H. saw the defendant, who was a boarder at William Jones' home, take his sister into the front bedroom. T.H.
[ 343 Pa. Super. Page 598]
heard his sister's screams and saw her lying on the bed face down with the defendant lying above her. T.H. saw the defendant put his penis in his sister's "butt". T.H. called to him to get off his sister. He then ran down to the kitchen for a kitchen knife and returned to the bedroom and threatened the defendant with the knife. The defendant then released Alana.
When the grandmother returned, she saw the defendant in the house and T.H. immediately told her what had happened. She immediately took Alana to Children's Hospital. The children at this time were three and six years of age, not ages four and seven as referred to by the court below.
At the sentencing proceeding, the Assistant District Attorney advised the court that the pre-sentence report contained a victim's statement by Alana's family indicating that she had been seriously traumatized by the sexual assault.
Under 42 Pa.C.S.A. § 9721(b), the sentencing court must consider the sentencing guidelines and, if the court deviates from the guidelines, must provide a contemporaneous statement of reasons for the deviation. The Commonwealth may appeal, 42 Pa.C.S.A. § 9781(b), and the appellate court may vacate and remand for re-sentencing where, as here, "the sentencing court sentenced ...