Commonwealth v. CorsonCommonwealth v. Corson
- Reporters:
- , ,
- Before:
- Popovich
The appellant, George L. Corson, Jr., entered a plea of guilty to third degree murder before Judge Eugene Creany in the Court pf Common Pleas of Cambria County. On February 10, 1981, appellant was committed to the Western Correctional, Diagnostic and Classification Center located at the State Correctional Institution, Pittsburgh, Pa., for a term of not less than 10 years nor more than 20 years. Thereafter, on March 10, 1981, appellant filed an appeal to this Court from the judgment of sentence.
Before deciding the merits of appellant’s claim attendant to the original sentence imposed, we find it necessary to discuss the assertion in appellant’s brief, which is not disputed by the Commonwealth, that the instant appeal is also from the lower court’s order denying appellant’s “Motion To Modify Sentence.” To start with, our perusal of the record indicates no notice of appeal being filed from the order denying said Motion.
Even if,
arguendo,
we were to agree that such appeal was perfected by the accused, it would have to be dismissed.
1
To explicate, prior to the appeal from the judgment of sentence, appellant submitted, on February 20,1981, a timely motion to modify the sentence.
It cannot be discounted that the lower court
did not
vacate the prior judgment of sentence, either in connection with granting the motion for modification or in order to have additional time within which to consider the motion. Such procedure would have had the same effect as an express order granting reconsideration under
Appellant’s appeal centers around the argument that the lower court, in imposing sentence, “did not fulfill the requirements of Com[monwealth] v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977)” and acted arbitrarily and capriciously. We disagree.
It is well settled that the imposition of a proper sentence is a matter vested in the sound discretion of the sentencing judge.
Commonwealth
v.
Valentin,
259 Pa.Super. 496, 393 A.2d 935 (1978). Of course, the sentence must be within the statutory limits,
see
At the hearing, appellant’s counsel conceded that his. client’s plea to the stabbing death of a cab driver, perpetrated during the course of a robbery, was “a serious matter and that the court ha[d] been in receipt of a great abundance of material, testimony and statements that g[a]ve the court a good background into the particulars of this offense.” (N.T. 2/10/81 at 4) However, counsel urged the court to take the following factors into consideration, which a review of the record indicates it did, in determining what the sentence should be:
*57 1) the psychiatric or psychological background of the defendant (he suffers from a schizoid personality defect which was exacerbated by a continuous pattern of alcohol and drug abuse);
2) the age of the defendant (he was 21 at the time of sentencing); and
3) the defendant “exhibited] remorse and regret” for the tragedy that occurred.
When the accused was afforded the opportunity to speak, he echoed his attorney’s sentiments.
In determining the length of sentence, the trial judge did not look solely to the nature of the criminal act. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). Quite the contrary, in compliance with Pennsylvania’s individualized sentencing system, Commonwealth v. Riggins, supra, the judge considered the particular circumstances of the offense, the accused’s age, education, history of drug and alcohol abuse, see Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977) cert. denied, 483 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978); Commonwealth v. Taranow, 359 Pa. 342, 59 A.2d 53 (1948); Commonwealth v. Ziomek, 291 Pa.Super. 251, 435 A.2d 894 (1981), and the pre-sentence report. See Commonwealth v. Gillespie, 290 Pa.Super. 336, 434 A.2d 781 (1981). Moreover, the judge’s reasons for the sentence imposed were adequately stated on the record. (N.T. 2/10/81 at 11-13); see Commonwealth v. Riggins, supra. In fact, the reasons given reveal an appreciation by the sentencing judge of appellant’s “serious past history of psychiatric and emotional disturbance,” which, if not treated by total confinement in a correctional institution, would expose the appellant “to the possibility of committing another crime.” (N.T. 2/10/81 at 12) Therefore, we are unable to conclude, as appellant would have us do, that the sentence is manifestly excessive or that it “is arbitrary, capricious and violates due process consideration of the United States Constitution, as well as similar provisions of the Pennsylvania Constitution.” (Appellant’s Brief at 7)
Judgment of sentence is affirmed.
Notes
. We observe that the dismissal of this portion of the appeal is not prejudicial to appellant’s case, for the issues raised therein are the same as those posed in his appeal from the judgment of sentence,
which we are addressing. (See
Appellant’s Brief at 4 & 5) Also, we mention for edification purposes that
. We note that pursuant to
In order to cause a notice of appeal from a judgment of sentence to be rendered inoperative under Rule 1410, the lower court, which also considers a motion to modify the sentence, is required to vacate the sentence within thirty days of the date judgment is entered. Otherwise, the lower court loses jurisdiction over the matter. See Comment toPa.R.Crim.P. 1410 .
. We hear this case pursuant to our powers as set forth in 42 o Pa.C.S.A. § 742 (“The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas .... ”).