Appeal from the Judgment of Sentence of March 26, 1984, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 83-06-1589.
Eric B. Henson, Deputy District Attorney, Philadelphia, for Com., appellant.
Nancy D. Wasser, Philadelphia, for appellee.
Brosky, McEwen and Hester, JJ. Brosky, J., files a dissenting opinion.
[ 355 Pa. Super. Page 417]
This is an appeal by the Commonwealth from judgment of sentence of eight months to twenty-three and one-half months imprisonment, to be followed by eight years probation, imposed following appellee's non-jury conviction of attempted burglary. The Commonwealth argues that the sentencing judge unreasonably deviated from the sentencing guidelines, failing to consider the totality of the circumstances, in imposing a sentence which was seventeen months below the guideline range. We agree, vacate the judgment of sentence and remand for resentencing within the range of the guidelines.
[ 355 Pa. Super. Page 418]
On May 4, 1983, at approximately 3:00 A.M., Philadelphia Police Officer Frank Ruditis observed appellee standing on two cinder blocks, holding on to the window screen of an apartment, evidently attempting to gain entry. Appellee approached Officer Ruditis and explained that he was merely talking to his girlfriend. When Officer Ruditis checked with the resident of the apartment, the resident stated that she did not know appellee, and had not given him permission to enter her apartment. Appellee was thereupon arrested and charged with attempted burglary. Following appellee's conviction in a non-jury trial, the trial judge retired and appellee was sentenced by a different judge. The Commonwealth filed a petition to reconsider sentence which was denied without a hearing and the Commonwealth filed this timely appeal.
When reviewing a sentence, we must consider 1) the nature and circumstance of the offense and the defendant's history and characteristics; 2) the sentencing court's observations of the defendant and the presentence report; 3) the sentencing court's findings; and 4) the sentencing guidelines. 42 Pa.C.S. § 9781(d).
As to the first factor, the sentencing court considered and enumerated mitigating circumstances related to the offense and the defendant's history; these factors were based on a psychiatric report and a presentence report. The court was advised of his family background, his military record which included service in Vietnam, his good behavior for three years while on parole, his present family situation with responsibility for two children, the fact that he had a job, the absence of any violence in his record, psychiatric treatment which he had received for a "peeping Tom" problem, and the fact that he would still be facing sentencing on his parole violation inasmuch as the instant offense constituted a violation of parole.
Countering those favorable considerations, however, is the fact that appellee had at least thirteen prior convictions including at least two for burglary. In reference to this wholesale record, the presentence investigator noted that
[ 355 Pa. Super. Page 419]
prior short periods of incarceration had not deterred the defendant from engaging in criminal activity. The evaluative summary continued, "It should be noted that in his previous contacts with the Courts, attempts were made to provide the [defendant] with the resources to help himself. It is apparent that these attempts were fruitless." N.T., March 6, 1984, at 29. The defendant's prior record was characterized as lengthy, spanning several decades. The sentencing judge's reaction thereto was to ...