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COMMONWEALTH PENNSYLVANIA v. HARRY YARBROUGH (12/02/87)

SUPREME COURT OF PENNSYLVANIA


decided: December 2, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
HARRY YARBROUGH, SR., APPELLEE

Appeal No. 97 W.D. Appeal Docket 1986, from the Order of the Superior Court, 354 Pa. Super. 633, 508 A.2d 344 (1986), of Pennsylvania entered on January 10, 1986 at No. 333 Pittsburgh, 1985, vacating the Judgment of Sentence entered February 12, 1985, of the Court of Common Pleas of Erie County, Criminal Division, at No. 1744 of 1984, and remanding for resentencing. Prior report: 354 Pa. Super. 633, 508 A.2d 344.

COUNSEL

Michael R. Veshecco, Dist. Atty., Michael R. Cauley, Asst. Dist. Atty., Erie, for appellant.

Carmela R.M. Presogna, Asst. Public Defender, Erie, for appellee.

Nix, Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Hutchinson, Former Justice, did not participate in the consideration or decision of this case. Larsen, Justice, filed a dissenting opinion in which McDermott, Justice, joined.

Author: Per Curiam

[ 516 Pa. Page 571]

ORDER

This appeal is dismissed as having been improvidently granted.

LARSEN, Justice, dissenting.

I dissent. Appellee, Harry Yarbrough, has a criminal record as long as my arm. This criminal activity spans three decades:

Date Offense(s) Disposition

05/06/5 3Larceny 5 years probation

10/19/56 Larceny Pay costs/restitution

11/26/56 Carrying 3 years suspended sentence and

     concealed deadly released on 2 years probation

     weapon

04/09/59 Burglary 4-8 years Pa. Bureau of

Corrections

04/11/59 Burglary 4-8 years Pa. Bureau of

Corrections

05/13/59 Burglary, 4-8 years Pa. Bureau of

Larceny Corrections

02/06/64 Burglary, Suspended sentence and pay

Larceny costs/restitution

07/09/64 Disorderly Forfeiture $25.00

     conduct

08/03/65 False Pretenses Pay restitution

09/16/65 Robbery 3-8 years Pa. Bureau of

Corrections

06/23/66 Robbery, Prison 1 1/2-3 years Pa. Bureau of

     breech Corrections

06/28/66 Convicted parole Recommitted

     violator

12/16/71 Burglary 2 1/2-7 years Pa. Bureau of

Corrections

09/16/74 Burglary, 5 years probation

Receiving stolen

     property

06/02/75 Escape 1-3 years Erie County Prison

03/21/77 Retail Theft Dismissed

03/29/77 Receiving stolen nolle prosequi

     property

03/29/77 Receiving stolen 11 1/2-23 months Erie County

     property, Theft Prison

     by Deception

03/29/77 Receiving stolen nolle prosequi

     property

03/29/77 Burglary, Theft 7 years probation. Probation

     by unlawful

     revocation hearings

     pending

     taking,

Receiving stolen

     property

01/19/79 Retail Theft 15 days Erie County Prison

01/31/79 Retail Theft 5 days Erie County Prison

01/22/80 Retail Theft $226 fines/costs

04/xx/80 Violation of 1 year probation. Probation

Public Welfare revocation hearings pending

Code (Fraud)

04/13/81 Retail Theft (4th 11 1/2-23 months Erie County

     offense) Prison. Probation revocation

     hearings pending

10/09/81 Retail Theft Dismissed

(private

     complaint)

12/17/81 Violation of No 6 months probation

Fault Insurance

Act

06/28/84 Retail Theft (5th Still pending

     offense)

[ 516 Pa. Page 573]

This final offense, the subject of the instant appeal, involved a retail theft in a supermarket at the corner of 24th and Parade Streets in Erie. Appellee was apprehended in the process of stealing four cans of sardines and one bottle of hot sauce. The trial judge carefully considered the "minor" nature of the offense and appellee's record of repeated offenses when he sentenced appellee to a term of 2 1/2 to 5 years imprisonment, well within the minimum sentencing guideline range.*fn1 In supporting his decision, the trial judge emphasized that the nature of the crime was not important in light of appellee's pattern of criminal conduct and his seeming inability to conduct his life beyond the confines of prison without violating the law.

Superior Court, in remanding for imposition of a lighter sentence, was of the opinion that this was not a serious crime and that it did not constitute a danger to the public. Substituting its own discretion for that of the trial court, Superior Court determined that the nature of the crime outweighed appellee's extensive record. As I stated previously:

Where the sentence is within the legislative guidelines, appellate courts may not vacate sentences as being manifestly excessive merely because the trial judge imposed a

[ 516 Pa. Page 574]

    tough sentence where the appellate judges would have given a lenient one.

Commonwealth v. Parrish, 515 Pa. 297, 303, 528 A.2d 151, 154 (1987) (Larsen, J., dissenting). It is clear that Superior Court exceeded its scope of appellate review and that this Court has the authority to correct this manifest error. Id.


*fn1 Appellee pleaded guilty to retail theft. Because this was a fifth offense of this nature, it was graded as a felony of the third degree. 18 Pa.C.S.A. ยง 3929(b)(1), (2). His offense gravity score was 5. Under the sentencing guidelines in effect at the time the offense was committed, the applicable minimum range was twenty-four to thirty-six months.


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