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

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 ...


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