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filed: September 21, 1988.


Appeal From Judgment of Sentence September 18, 1987, Court of Common Pleas, Criminal Division, Blair County No. 333 of 1983, 514 of 1986 OTN: B1721705


J. Randall Miller, Assistant Public Defender, Hollidaysburg, for appellant.

Keith A. Pesto, Assistant District Attorney, Hollidaysburg, for Com., appellee.

Cavanaugh, Rowley and Kelly, JJ. Kelly, J., concurs in the result. Rowley, J., dissents.

Author: Cavanaugh

[ 379 Pa. Super. Page 378]

The issues on appeal relate to the claimed excessiveness of sentence and alleged defective sentencing procedures in the imposition of sentences of imprisonment imposed upon Samuel Blair Hainsey and his wife, Sandra Lee Hainsey.

On August 11, 1987, appellant Samuel Blair Hainsey, was sentenced to a period of forty-eight hours to six months imprisonment and fined on a conviction of driving under the influence. On the same date, Hainsey was sentenced to a period of nine months to thirty-six months imprisonment for

[ 379 Pa. Super. Page 379]

    multiple charges of poolselling and bookmaking and a conspiracy charge. The latter sentence also included a fine and an order of restitution to the Pennsylvania State Police.

We first address the appellant's claim that the sentences of incarceration on the poolselling and bookmaking charges are excessive and we note that there is a companion appeal raising similar arguments filed on behalf of appellant's wife, Sandra Lee Hainsey, who on the same day was given a sentence of three to twenty-three and one-half months imprisonment on identical poolselling, bookmaking and conspiracy charges. Our discussion relates to both cases.

It is well settled that the appellate scope of review is severely limited when considering a bare claim of excessiveness of sentence. Our system of sentencing necessitates that we grant broad discretion to the trial judge and our appellate courts have traditionally left sentences undisturbed on appeal because of the view that the sentencing court is in a far better position to weigh the factors involved in sentencing determinations. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Thus, an appellate court will not find an abuse of discretion, provided that the sentence imposed is not so manifestly excessive as to inflict too severe a punishment. Commonwealth v. Ziomek, 291 Pa. Super. 251, 435 A.2d 894 (1981). See also Commonwealth v. Burtner, 307 Pa. Super. 230, 453 A.2d 10 (1982); Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1981); Commonwealth v. Person, 450 Pa. 1, 297 A.2d 460 (1972).

So charged, we examine the background which led to the sentences, initially as to the poolselling and bookmaking charges. The Hainseys were charged with nineteen counts of poolselling and bookmaking, 18 Pa.C.S.A. § 5514, and one count of criminal conspiracy, 18 Pa.C.S.A. § 903, following their arrest in June of 1986. In March of 1987, they entered pleas of guilty before the Honorable David E. Grine, sitting as a visiting judge in Blair County. After the conduct of a presentence investigation report, the appellants were sentenced in August of 1987 as previously stated.

[ 379 Pa. Super. Page 380]

Except for modification of a restitution order, their motions for reconsideration were denied and this appeal followed.

The nineteen offenses resulted from an investigation by the Pennsylvania State Police and consisted of contacts by a confidential informant using consensual telephone calls in the presence of a state policeman and using consensual wire equipment in the case of personal meetings. The personal contact was at the location of a tavern owned by the Hainseys known as the Double "S" in Juniata, Pennsylvania. During the course of these contacts by phone and in person with either appellant, the informant was given the "betting line" on college football and professional football games each weekend during the 1985 football season. The informant bet on both college and professional games each week. (These successive transactions constituted the basis for the nineteen charges.) After the weekend, the informant would stop by the Double "S" Bar and settle his betting account for the previous weekend. Sometimes the informant won, more often he lost, with the result, says the Commonwealth, that the Hainseys netted $824.00 from this series of wagers.

Samuel Hainsey, age fifty, in addition to his ownership of the Double "S" Bar, is employed by Conrail as an engineer at a salary of approximately $42,000.00 a year. Sandra, age forty-four, retired in 1985 after thirteen years with the Commonwealth of Pennsylvania. Between them they have five children including a youngster of thirteen. Sandra had no criminal record and Samuel had only a driving under the influence conviction which will be discussed later in this opinion.

Underpinning appellant's argument on appeal is a supplication to heed the contradiction in the fact that the iniquity made illicit by the Commonwealth's poolselling and bookmaking laws, is precisely the kind of business which is conducted by the Commonwealth in its Pennsylvania Lottery which is championed throughout the Commonwealth in extravagant and persuasive ads aimed at every segment of

[ 379 Pa. Super. Page 381]

    our society; that the Commonwealth has licensed wagering at race tracks in Pennsylvania; and that people from every strata of society engage in formal and informal bets on college and professional football games, facilitated by point spreads published by the print media throughout the state. Compared to this, say the Hainseys, their betting operation was but a "Mom and Pop" enterprise furnished to accommodate the sporting aspirations of a small group of their acquaintences. As to this last contention, there is nothing in the record including the presentence reports to suggest or prove otherwise. Certainly the trial court has not stated otherwise and, of course, we must assume that the court was aware that sentencing may not be based on facts or factors not of record nor disclosed to the defendants. One can argue with some reason the unseemliness of the Hainsey's incarceration in the Blair County Prison for engaging in a wagering enterprise whilst the Commonwealth and its licensees trade millions of dollars in gambling endeavors which have placed organized wagering on an altar of respectability said to provide for the recreational and aspirational needs of the citizenry. Of course private and unregulated wagering upon which the present charges were grounded may create risks and opportunities inconsistent with the public weal. This is a legitimate concern but, counter the Hainseys, though we now admit that we have transgressed the law and learned our lesson, our sentence reflects an unfair judgment not of our folly, but rather that our conduct was sinister and corrupt. However, the appellants have freely chosen to plead guilty to a crime enacted as a legitimate exercise of legislative authority; the investigation and ...

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