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COMMONWEALTH PENNSYLVANIA v. JOSEPH FRANCIS DEVERS (11/29/85)

SUPERIOR COURT OF PENNSYLVANIA


November 29, 1985

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH FRANCIS DEVERS, JR., APPELLANT

Appeal from the Order of February 22, 1985, Court of Common Pleas, Dauphin County, Criminal Division at Nos. 1389 & 1389(A).

Before: Tamilia, Johnson and Hoffman, JJ.

Per Curiam:

Order and Judgment of Sentence Vacated and Remanded. Jurisdiction Relinquished.

Tamilia, J. files a dissenting memorandum.

Disposition

Order and Judgment of Sentence Vacated and Remanded. Jurisdiction Relinquished.

ING MEMORANDUM BY TAMILIA, J.:

I respectfully but strongly dissent. The majority's position in this matter cannot be supported by any sound rationale of sentencing philosophy or precepts of law. Appellant makes two claims: that the sentencing judge failed to articulate his reason for the (15 to 30 year) sentence imposed, and that the sentence is excessive. They are actually one complaint--that the trial court did not demonstrate to appellant's satisfaction why, in view of appellant's good behavior prior to the killing and since his confinement, he should have been imprisoned.*fn1

The majority's finding that insufficient reason was given for the sentence, viz., total confinement, is not only rendered de minimus given the sheer brutality of the crime,*fn2 but is quite simply belied by the record. See Commonwealth v. Curry, 318 Pa. Super. 490, 465 A.2d 660 (1983). Commonwealth v. Green, Pa. Super. , 431 A.2d 918 (1981). The trial judge was very obviously aware of what appellant terms "mitigating circumstances," e.g. his background and prior irreproachable behavior, and notes that these factors make the violence of the murder so much more perplexing.

Riqgins statements have as their purpose to facilitate appellate review. Commonwealth v. Mueller, 274 Pa. Super. , 418 A.2d 465 (1980). We find the statement here quite adequate for this or any other use.

The majority's reliance on Commonwealth v. Cruz, 291 Pa. Super. 486, 436 A.2d 220 (1981) is misplaced as the sentence there was imposed on an incident in which the defendant struck the victim with a wooden shovel handle, causing contusions to the victim's arms. The nature of that crime, which was the trial court's basis for the sentence, in relation to the sentence, could well have been disproportionate to the other factors in sentencing. Here, where a life was taken in a grisly and vicious manner for purposes of concealing a robbery, the nature of the crime becomes paramount, and other sentencing factors, subsidiary. The Sentence code provides:

The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:

(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;

(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or

(3) a lesser sentence will depreciate the seriousness of the crime of the defenda nt. (emphasis added)

While no case to our knowledge has said that the seriousness of the crime or brutality of its commission alone, without consideration of a presentence report and other factors delineated in the sentencing code, would permit imposition of a sentence of total confinement, we are likewise of the view that running down the check list of sentencing provisions is not required when it appears from the record that the court was fully aware of the relevant factors and considerations. Commonwealth v. Rooney, Pa. Super. , 442 A.2d 773 (1982); Commonwealth v. Walton, Pa. Super. , 433 A.2d 517 (1981). It would appear here, that the court was aware and considered the relevant factors, having available to him a presentence report and discussion of the alternatives proposed by defense counsel. We can see nothing in the record that would have permitted the trial court to enter a sentence less than total confinement for a reasonably long period of time to meet the mandate of 42 Pa.C.S.A. ยง 9725(3) "a lesser sentence will depreciate the seriousness of the crime." When this section has been brought into question as a basis for sentencing to total confinement, it invariably related to local mandatory sentences practices. See Commonwealth v. Butch, Pa. , 407 A.2d 1302 (1979) (defendant sentenced to five and one-half to twenty-three months for sale of one ounce of marijuana as first offender college student) or lesser offenses which permitted a much broader range of options than available here. Where the sentence was imposed in consideration of the seriousness of the crime, as it relates to the defendant's past activity, it was held that alone would justify a sentence of total confinement. Commonwealth v. McCall, Pa. Super. , 467 A.2d 631 (1983). It would appear here that the majority would have the court say words other than those contained in the code as to the seriousness of the crime to justify total confinement, when, in fact, no other words or justification would be adequate. I believe the court below considered and applied the guidelines and the simple lack of articulation on the record of each of the factors contained in the sentencing code in no way prevents an adequate review by this Court of the trial judge's reasoning. Commonwealth v. Franklin, 301 Pa. Super. 17, 446 A.2d 1313 (1982); C Commonwealth v. Wareham, 259 Pa. Super. 527, 393 A.2d 951 (1978).


*fn1 From his argument that he performed a public service in eliminating a drug dealer from the gene pool, we gather that appellant expected a testimonial.

*fn2 The majority neglects to mention that the victim was bludgeoned, stabbed and finally strangled, having apparently been pursued all over the house, and losing copious amounts of blood in the process. Appellant then ransacked the dwelling for drugs and money causing even more damage.


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