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filed: August 2, 1985.


Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal No. 83-05-1354.


Susan V. Kahn, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Thomas I. Puleo, Philadelphia, for appellee.

Spaeth, President Judge, and Johnson and Shoyer,*fn* JJ.

Author: Spaeth

[ 344 Pa. Super. Page 294]

This is a Commonwealth appeal from judgment of sentence for third degree murder of 11 1/2 to 23 months in prison (with credit for just under 9 months time served) followed

[ 344 Pa. Super. Page 295]

    by 10 years probation. The Commonwealth argues that the sentence is unreasonably lenient and unreasonably deviates from the recommended minimum ranges provided in the Sentencing Guidelines, 204 Pa.Code § 303.1 et seq. On the record as it now stands, we agree. We therefore vacate judgment of sentence and remand for resentencing consistent with this opinion.


Initially we must determine whether the Commonwealth's appeal is properly before us. See Commonwealth v. Drumgoole, 341 Pa. Super. 468, 491 A.2d 1352 (1985). Under 42 Pa.C.S. § 9781(b), the Commonwealth may appeal the discretionary aspects of a sentence by filing a petition for an allowance of appeal; a notice of appeal will serve the same purpose as a petition. See Pa.R.A.P. 902, Note. Here, the Commonwealth initiated the appeal by filing a timely notice of appeal. Even so, we may entertain the appeal only if "it appears that there is a substantial question that the sentence imposed is not appropriate . . . ." 42 Pa.C.S. § 9781(b); Pa.R.A.P. 341, Note. As will appear from the ensuing discussion, the record does raise such a question. The Commonwealth's petition for appeal is therefore granted.


On August 22, 1983, appellee entered a guilty plea to an information charging him with murder and voluntary manslaughter. The Commonwealth stipulated that the facts would support an adjudication no higher than third degree murder. R.R. 2a. During the plea colloquy, the prosecutor summarized the factual basis of the plea, as follows. R.R. 23a et seq.

The victim was James Smith, a 57 year old taxi driver. On March 24, 1983, appellee and his girlfriend engaged Smith to drive them to various places; several others were with them. In the course of the afternoon they bought a bottle of vodka. The bottle was passed around in the car and Smith was among those who drank from it; the autopsy

[ 344 Pa. Super. Page 296]

    report disclosed that his blood alcohol content was .20. After some time, on a Kentucky Fried Chicken parking lot, Smith's passengers asked him to take them farther, but he objected, stating that he wanted more money. An argument between Smith and appellee ensued. Appellee pulled Smith out of the car. Smith had a knife, and he cut appellee with it, gashing him about an inch and a half in the forehead. The two men struggled. Smith went down, and appellee and his girlfriend walked away. When appellee realized that his forehead was bleeding, he went back, stabbed Smith in the chest, and kicked him several times. R.R. 23a-26a.

In support of this description of the incident the prosecutor identified the witnesses she expected to call and summarized the testimony she expected them to give.

One of the passengers in the car was Jessie Breedlove. He was a friend of Smith's. The prosecutor stated that he would testify: that Smith was so drunk he could barely stand and some one else had taken over the driving; that he was in the back seat with Smith before appellee pulled him out; that Smith and appellee each had a knife; that he saw appellee go back to Smith while Smith was on the ground "and saw him kick him. He did not see him stab him at that point." R.R. 27a.

Stuart Hill was working at a tire business across the street from the Kentucky Fried Chicken. The prosecutor stated that he would testify that

     he knows none of the people in the case. He was working there; he changes tires. And he saw a fight going on. He heard an argument. He saw the younger man, the defendant, hit the older man, Mr. Smith; saw the defendant walk away, come back, and stomp the victim while he was on the ground . . . . He did not [see him stab]. He called the police.

R.R. 27a-28a.

John Knittel was on the Kentucky Fried Chicken parking lot. The prosecutor stated that he would testify that

[ 344 Pa. Super. Page 297]

[he] does not know any of the parties involved; that he saw the older man with a knife, he saw the younger man with a knife. He saw the older man trying to get up after he had already been knocked to the ground. Saw the defendant come back and hit him at least five or six times with a knife in his hand, hitting him and kicking him in the head.

R.R. 28a.

The prosecutor then added, evidently still referring to Knittel's expected testimony:

When the defendant came back, he said to the older man, the decedent, "Look what you've done to me," indicating the blood on his head, started to swing at the old man. That's when he had the knife in his hand, while he was swinging.

R.R. 28a-29a.

The prosecutor then further added:

Your Honor, in addition to what I have mentioned, John Knittel would testify -- and I quote from his statement: "I was going to help the guy till I saw a knife in his hand. Then the young guy" -- meaning the defendant -- "I saw next to the car came from behind me. He was pointing to his head and said to the old guy, 'Look what you did to my eye.' I could see blood around the guy's eye. By this time, the old man had gotten up. Then the young guy started to swing a knife at the old guy. The old guy kept backing up. The old guy went down. Then the young guy started to kick the old guy in the head."

R.R. 30a.

Geraldine Nash was among the passengers in the car. The prosecutor stated that she would testify that

     the defendant came back after the initial fight. "Walter came back while J.C." -- meaning the decedent -- "was on the ground. He stabbed J.C. in the face, and he kicked J.C. in the head a couple of times." This was after the initial confrontation.

R.R. 31a-32a.

[ 344 Pa. Super. Page 298]

Defense counsel then made several comments on the evidence.

Counsel first commented on Knittel's statement:

[I]t seems there's some question about when in fact Mr. Smith was actually stabbed in the chest in this case. Mr. Knittel is asked, "When the younger guy started to swing a knife at the old guy, did you see him stab the old guy?" And Mr. Knittel answered: "I could see him making contact with the old man's body. He hit the old man five or six times."

He never said that Mr. Dixon ever in fact stabbed Mr. Smith at that point.

R.R. 32a.

Defense counsel next stated that there was another witness, not identified by the prosecutor, one Doris Barco:

Miss Barco was also present inside the cab. She stated that while the tussle was going on, and James Smith and Walter Dixon were going at each other, she said Walter had swung his fist first at J.C., but missed. Then when J.C. swung the knife and cut Walter on the head, Walter grabbed his head and you could see blood on his hand. Then Walter charged J.C. and punched him and knocked him on the ground and grabbed J.C.'s arm and twisted the knife and stabbed J.C. on the ground.

R.R. 32a-33a.

To this, the prosecutor added:

In addition, Your Honor, she would also testify that she asked the defendant not to go back once he had walked several steps away.

They had walked at least I believe she would say about 20 feet. She said. "Walter, come on, let's go," but the defendant, realizing he was ...

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