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decided: July 27, 1988.


Appeal from the Order of the Superior Court Entered at No. 137 Harrisburg, 1985 on November 29, 1985, Vacating the Order of the Court of Common Pleas of Dauphin County, Criminal Division, Entered at Nos. 1389 and 1389(A) on February 22, 1985. Pa. Superior Ct. , 505 A.2d 1030 (1985).


Richard A. Lewis, Dist. Atty., Katherene E. Holtzinger, Yvonne A. Okonieski, Deputy Dist. Attys., William T. Tully, Harrisburg, for appellant.

Marilyn C. Zilli, James R. Rosato, Frederick W. Ulrich, Asst. Public Defenders, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Zappala, J., concurs in the result.

Author: Papadakos

[ 519 Pa. Page 89]


[ 519 Pa. Page 90]

In this review, we are afforded an opportunity to clarify the meaning of our landmark decision, Commonwealth v. Page 90} Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and in so doing to clear away the tangled growth of legal misunderstandings which have sprung up around this case. That case firmly established the requirement that a sentencing court must disclose on the record the reasons for the imposition of a particular sentence. We are compelled now to put to rest misconceptions and borderline distinctions which have appeared in our legal literature on the specific issue of the sufficiency of the recorded statement required for sentencing.

The Appellee, Joseph Francis Devers, was involved in a drug related murder and robbery which occurred on May 13, 1983. The victim, Charles Chiloro, Jr. ("Chiloro"), was selling drugs, cocaine and marijuana, at his parents' home in Harrisburg. At the time of the killing, Chiloro's parents were in Florida, but returning soon. Devers went to the house to purchase some cocaine. Thereafter, Chiloro's body was found by his girlfriend. The cause of death was strangulation resulting from an electrical cord as well as the loss of blood. There was a stab wound in Chiloro's back and multiple slash and stab wounds around his body. There was blood all over the house. Drug paraphernalia and marijuana were left in the home, but cocaine and some $11,075 in cash were taken.

Prior to Devers' jury trial, he pled guilty to third degree murder and robbery, and there was no agreement about sentencing. On February 22, 1985, the trial court sentenced Appellee to ten (10) to twenty (20) years for third degree murder and five (5) to ten (10) years for robbery. Appellee complains that the sentencing judge erred by failing to explain in depth why he did not give greater consideration to mitigating circumstances on his behalf. Appellee relies upon Riggins to support his complaint.

At the outset it must be noted that the efficacy of the verdicts is not questioned by the Appellee. Only the sentencing procedure has been placed at issue.

Prior to Riggins, our common law on the subject of sentencing implied the need for some degree of recorded

[ 519 Pa. Page 91]

    explanation.*fn1 Over a half century ago, in Commonwealth v. Garramone, 307 Pa. 507, 161 A. 733 (1932), we created the need in a death case for the court to "file a brief memorandum which will reveal the reasons for the sentence imposed." The principle of having a record was reaffirmed in subsequent cases. Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973); Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1959); Commonwealth v. Hawk, 328 Pa. 417, 196 A. 5 (1938); and Commonwealth v. Irelan, 341 Pa. 43, 17 A. 897 (1941). In Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), a non-capital drug case decided one year before Riggins, we found grounds for remand where three judges had agreed on a sentence beforehand, had not requested a pre-sentence report, and had failed to take into account the enumerated balancing factors enunciated in the newly-enacted Sentencing Code, §§ 1321-26.*fn2 These holdings were derived from two general principles in our jurisprudence: individualized discretionary sentencing and, in Martin, the avoidance of excessive punishment.

Under the 1974 Sentencing Code, a defendant could be sentenced alternatively to probation (§ 1322), guilt without further penalty (§ 1323), partial confinement (§ 1324), total confinement (§ 1325), or a fine (§ 1326). Each section included a list of enumerated factors to be "accorded weight" in the selection of that sentence. When these sections were replaced in 1980 by 42 Pa.C.S.A. § 9721(a), which restated the five sentencing alternatives, and § 9721(b), which did away with the enumerated factors in favor of a scoring system, language was retained which still requires a statement on the record of the reasons for the sentence.

The philosophy of indeterminate or individualized sentencing was explicitly recognized by the Pennsylvania Legislature

[ 519 Pa. Page 92]

    early in this century.*fn3 Courts are not permitted to mete out punishment based on the mere fact of the crime. On the contrary, sentencing must result both from a consideration of the nature and circumstances of the crime as well as the character of the defendant. The sentencer has broad discretion to choose a penalty from sentencing alternatives and the range of permissible confinements, provided the choices are consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Discretionary sentencing, in sum, means that a defendant cannot be punished on the basis of the crime alone.

The central problem, of course, remains the definition of standards by which to determine whether a court has followed the process of weighing these factors. In the pre- Riggins line of cases above, it was not the practice to order pre-sentence reports, and on review, appellate courts then gleaned the entire record for evidence that the weighing process had taken place. In Martin, Mr. Justice Roberts (later Chief Justice) wrote for the majority that pre-sentence reports are of enormous value in providing the court with relevant defense information for consideration in sentencing, and called for changes to amend our rules: "We are therefore requesting that the Criminal Procedural Rules Committee prepare a recommendation for the Court amending Rule 1403 to require that, whenever a sentencing court fails to order a pre-sentence report in any of these situations, it shall place in the record its reasons for dispensing with such report." Id., 466 Pa. at 135, 351 A.2d 650. We note at this point that the present Pa.R.Crim.P. 1403 continues to provide that:

Rule 1403. Aids in Imposing Sentence

A. Pre-sentence Investigation Report.

(1) The sentencing judge may, in his discretion, order a pre-sentence investigation report in any case.

[ 519 Pa. Page 93]

(2) The sentencing judge shall place on the record his reasons for dispensing with the pre-sentence investigation report if the court fails to order a pre-sentence report in any of the following instances:

(a) where incarceration for one year or more is a possible disposition under the applicable ...

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