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COMMONWEALTH PENNSYLVANIA v. JOSEPH AULISIO (05/16/88)

filed: May 16, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH AULISIO, APPELLANT



Appeal from the Judgment of Sentence of July 21, 1987 in the Court of Common Pleas of Lackawanna County, Criminal at No. 81 CR 1386

COUNSEL

Rose A. McGowan, Assistant Public Defender, Moscow, for appellant.

Francis P. Sempa, Assistant District Attorney, Pittston, for Com., appellee.

Tamilia, Hoffman and Hester, JJ.

Author: Hester

[ 373 Pa. Super. Page 506]

Joseph Aulisio appeals from the judgment of sentence entered on July 21, 1987, in the Court of Common Pleas of Lackawanna County. Appellant was found guilty in 1982 by a jury of two counts of murder of the first degree and two counts of kidnapping. Originally, he was sentenced to death on the murder charges and to two consecutive terms of imprisonment of seven and one-half to fifteen years on the kidnapping charges. On direct appeal to the Pennsylvania Supreme Court, the court affirmed the two murder convictions, but found insufficient evidence to sustain the kidnapping convictions. Inasmuch as the death sentence imposed was based on, inter alia, the aggravated circumstance of a killing while in perpetration of felonies (the kidnappings), the court vacated the death sentence and remanded to the Court of Common Pleas "for appellant to be sentenced to life imprisonment." Commonwealth v. Aulisio, 514 Pa. 84, 522 A.2d 1075 (1987). On remand, the Court of Common Pleas entered a sentence of two consecutive terms of life imprisonment. In this appeal, appellant argues that the sentence exceeded the remand order, and that a sentence of consecutive terms of life imprisonment is not allowed by statute. We affirm.

[ 373 Pa. Super. Page 507]

Appellant first argues that in imposing consecutive sentences, the trial court abused its discretion by going beyond the supreme court's remand order. That order states:

On consideration whereof, it is now here ordered and adjudged by this Court that the convictions of the Court of Common Pleas, Lackawanna County, be and the same are affirmed as to the two counts of murder of the first degree. The sentence of death is vacated, and the case is remanded to the Court of Common Pleas of Lackawanna County for appellant to be sentenced to life imprisonment. The convictions as to the two counts of kidnapping are reversed, and the sentences vacated.

According to appellant, by directing the sentencing court to sentence appellant "to life imprisonment," the supreme court precluded a sentence of two consecutive terms of life imprisonment. Moreover, he contends that even if the remand order is open to interpretation, "the interests of justice would dictate that if two equally plausible interpretations may be inferred, the appellant should be given the benefit of the least harmful interpretation." Appellant's brief at 9.

This assertion is meritless. We have held that a sentence of two consecutive terms of life imprisonment does not contravene the statutory sentencing scheme. Commonwealth v. Button, 332 Pa. Super. 239, 481 A.2d 342 (1984). In the instant case, we do not believe that the supreme court, in remanding the case for resentencing, intended to foreclose the sentencing court from imposing consecutive life sentences. While the remand order directed imposition of a sentence of "life imprisonment," we must view this language in the context of the court's opinion. The opinion focused on whether the death sentence was appropriate and whether the kidnapping convictions were supported by sufficient evidence. The remand order, quoted supra, set forth the court's holding with respect to these two questions; it should not be interpreted as addressing issues not discussed by the supreme court or to limit the sentencing court's discretion in matters not addressed. The supreme

[ 373 Pa. Super. Page 508]

    court's opinion simply did not discuss the appropriateness of consecutive life sentences in this case. Therefore, it would be unreasonable to hold that the remand order forbade the sentencing court from imposing an otherwise ...


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