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filed: October 4, 1989.


Appeal from the Judgment of Sentence of the Court of Common Pleas, York County, Criminal Division, at No. 542 CA 1988.


Thomas L. Kearney, York, for appellant.

H. Stanley Rebert, Dist. Atty., York, for Com., appellee.

Brosky, Beck and Hoffman, JJ. Beck, J., files a dissenting opinion.

Author: Brosky

[ 387 Pa. Super. Page 520]

This is an appeal from a judgment of sentence imposed upon appellant after he was convicted of burglary but acquitted on charges of robbery, two counts of rape and involuntary deviate sexual intercourse. Appellant raises one issue for our consideration: whether the sentencing court abused its discretion by imposing a sentence which was too severe and excessive under the circumstances.

[ 387 Pa. Super. Page 521]

Upon considerable reflection and consideration of all arguments and considerations, we vacate the judgment of sentence and remand for resentencing.

Appellant participated in the burglary of a home used as a shelter for abused women. Two women testified that they were raped during the commission of the crime and that appellant participated in the rapes. The appellant, however, testified that he had been drinking when approached by two individuals to commit a burglary and/or robbery. According to his testimony appellant led the individuals to the home but then indicated an unwillingness to participate further and left. At the conclusion of a jury trial, appellant was convicted of burglary but acquitted of the remaining charges.

At sentencing it was indicated that at the age of 14 or 15, appellant had knocked a five year old off a bicycle and ridden off on it. Appellant was discharged from a home for boys for this behavior. However, according to the record, other later juvenile placements resulted in satisfactory adjustments. Despite the fact that the guideline sentences for burglary were 12-29 months in the standard range and 29-36 months in the aggravated range, appellant was sentenced to eight to twenty years imprisonment; thus representing a minimum sentence of two and a half times the outside of the guideline sentence in the aggravated range.*fn1 This sentence was imposed despite a recommendation in the pre-sentence investigation report of a sentence of imprisonment in a two and one half to five years range. The report also mentioned that it was the practice of the local court to impose a long county or short state prison sentence for such convictions of burglary. It is further

[ 387 Pa. Super. Page 522]

    noteworthy that appellant had charges pending against him for other serious offenses.

Upon considerable review of appellant's contention, that the trial court abused its discretion in imposing sentence, we are inclined to agree with that contention and therefore vacate the sentence imposed. We believe this conclusion should be reached simply in consideration of the sentence imposed, the conviction returned and the so-called aggravating circumstances offered by the trial court to justify the sentence imposed. However, we believe this conclusion is further compelled in light of the fact that appellant was acquitted of several other charges. The circumstances of the present case, in our opinion, invite a tremendous amount of suspicion that the trial court was simply disregarding the jury's verdict of not guilty of the various charges other than burglary and imposing sentence as if appellant had been convicted of those charges. This is a situation which can erode the confidence in the jury trial system and violates the convicted individual's fundamental right to be judged by a jury of his peers.

We start our discussion with a recitation of the general standard to be applied to our review. It is axiomatic that sentencing is within the discretion of the sentencing court and that the sentence imposed will not be disturbed absent an abuse of discretion. Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980). However, this deference paid to the trial court does not necessitate a rubber stamped approval of the sentences imposed by the sentencing court. Appellate review of sentencing matters would become a mockery and a sham if all sentences were routinely affirmed under the guise of discretion of the trial court. Further, it must be considered our function to review sentences in a more detached manner so that we can ensure not only a fair and impartial sentence under the circumstances, but also to protect against grossly disparate treatment of like offenders throughout the Commonwealth. It should also be understood that a finding of an abuse of discretion does not necessarily equate with a finding of bias

[ 387 Pa. Super. Page 523]

    or wrongdoing on the part of the sentencing court, but rather is consistent with a finding that a reviewing body believes the sentence inappropriate under the circumstances to a degree beyond the bounds of reasonable discretion and deference to the sentencing court. Thus, among other things, an abuse of sentencing discretion can be found if the sentencing court issues a sentence which is manifestly ...

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