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COMMONWEALTH PENNSYLVANIA v. ROBERT LOWE (03/06/87)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 6, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT LOWE, APPELLANT

Appeal from the Judgment of Sentence of July 3, 1986 in the Court of Common Pleas of Lancaster County, Criminal No. 85-1756.

COUNSEL

John R. Carroll, Philadelphia, for appellant.

Cheryl A. Ondechek, Assistant District Attorney, Lancaster, for Com., appellee.

Cavanaugh, Wickersham and McEwen, JJ.

Author: Mcewen

[ 361 Pa. Super. Page 344]

Appellant has undertaken this appeal from the judgment of sentence imposed after he pleaded guilty to one count of criminal solicitation to commit forgery, 18 Pa.C.S. §§ 902, 4101, and one count of false reports to law enforcement officers, 18 Pa.C.S. § 4906(b). He was, as a result, sentenced to serve a term of imprisonment of from one year to five years less one day for the offense of criminal solicitation, and to a concurrent term of imprisonment of from one year to two years for filing the false report. Both offenses arose from the same incident and, until the time that appellant engaged in this criminal behavior, he had been a

[ 361 Pa. Super. Page 345]

    law abiding citizen and had served for twenty-eight years as a state policeman. The sentencing court declared in the expression of reasons for the sentence that the fact that appellant was a police officer was an aggravating factor under the guidelines.*fn1 We disagree and, accordingly, vacate the judgment of sentence and remand the case to the sentencing court.

The record reflects that appellant entered into a counterfeiting scheme with individuals to whom he delivered $27,000, and his brother-in-law delivered an additional $8,000. The individuals to whom appellant and his brother-in-law delivered the $35,000 had tricked appellant into believing that an elaborate bleaching process would enable counterfeit bills to be made from real currency. It serves no purpose to specifically describe the counterfeiting process by which appellant was duped except to describe it as bizarre. When the bogus counterfeiters absconded, appellant filed a report with the local police that the sum of $35,000 had been stolen from his brother-in-law. Following an investigation, appellant was charged with the criminal solicitation of his brother-in-law in the counterfeiting scheme, and with filing a false report of the theft of $35,000.

The contention that the sentencing court improperly considered appellant's position as a state policeman as an

[ 361 Pa. Super. Page 346]

    aggravating factor presents a most troubling issue. The transcript of the sentencing proceeding reflects the extended and careful deliberation that the eminent sentencing judge had provided, as is his custom, to his determination of the sentence to be imposed. Nonetheless, while we emphatically reject the assertions of appellant that the sentencing judge failed to adequately consider the factors that would call for a sentence to a term of probation, and that the court gave undue emphasis to the criteria which call for a sentence of confinement,*fn2 we are constrained to remand the case to the sentencing court because we do not agree that the fact that appellant was a police officer can be considered as an aggravating factor under the circumstances of this case.*fn3

We here consider the case of an offender who, the prosecution does not dispute, led a law abiding life that had included the completion of twenty-eight years of service to the Commonwealth during which he had attained the rank of Sergeant of the Pennsylvania State Police, a law abiding life which was abruptly halted when he engaged in the criminal conduct to which he entered a plea of guilty.

The ancient admonition that the punishment must fit the crime was long ago rejected in this Commonwealth.

At one time, sentencing by a court after a finding of guilt was purely ceremonial, since there was but one penalty at

[ 361 Pa. Super. Page 347]

    law for any given crime. However, during the nineteenth century . . . the practice of discretionary sentencing began . . . . [and] . . . soon became an integral part of judicial procedure; the sentencing court had increasing discretion in its choice of sentence. This development reflected the move toward individualized sentencing, which attempted to rehabilitate, as well as to punish the offender.

The indeterminate sentence won early recognition in Pennsylvania. The Act of June 19, 1911, P.L. 1055 § 6, as amended, 19 P.S. § 1057 (1964).

The Legislature reinforced [the indeterminate sentencing] provisions by allowing suspension of sentence and probation, at the sentencing court's discretion, in all but the most serious crimes. Act of June 9, 1911, P.L. 1055, § 1, as amended, 19 P.S. § 1051 (1964). The court has the power to use this sentencing alternative where:

Commonwealth v. Martin, 466 Pa. 118, 128-129, 351 A.2d 650, 655-656 (1976) (footnotes omitted).

More recently, the legislature has provided that "the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(b). Moreover, our Supreme Court has instructed that in selecting a sentence in accordance with Section 9721 of the Sentencing Code, "[a]t least two factors are crucial . . . the particular circumstances of the offense and the character of the defendant." Commonwealth v. Martin, supra, 466 Pa. at 133, 351 A.2d at 658 (emphasis supplied). Accord: Commonwealth v. Riggins, 474 Pa. 115, 133 n. 24, 377 A.2d 140, 149 n. 24 (1977);

[ 361 Pa. Super. Page 348]

We, therefore, hold:

That the fact that an offender has led a lawful life free of arrest and conviction, should be a mitigating factor in the reflection which the court devotes to the selection of an appropriate sentence.

That whenever (1) an offender has led a lawful life free of arrest and conviction, and (2) the misconduct which gave rise to the offenses of which he has been convicted cannot be demonstrated to have been but one episode in a pattern of criminal conduct, and (3) the sentencing judge finds the offender has experienced a sense of shame by reason of the disgrace that he has heaped upon his calling, other individuals and himself, the sentencing judge may consider the offender as partially punished, a conclusion to be considered in mitigation of the legal punishment to be imposed -- for who can deny that those punished by their sins suffer more severly than those punished for their sins.*fn5

[ 361 Pa. Super. Page 350]

Therefore, for the reasons herein set forth, we vacate the judgment of sentence and remand for resentencing.

Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.

Disposition

Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.


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