233 Pa. Super. 231 | Pa. Super. Ct. | 1975
Opinion by
The sole meritorious issue raised in this appeal is that the lower court imposed an illegal fine upon the appellant.
On November 12, 1973, the President Judge of the Court of Common Pleas of Bucks County granted the appellant’s application for the assignment of counsel pursuant to §9960.6 of the Public Defender Act.
On June 11, 1974, a jury found appellant guilty of involuntary manslaughter. On August 2, 1974, the defendant was sentenced to a term of two and one-half to five years’ imprisonment. In addition, appellant was ordered to pay the costs of prosecution and a fine of $5,000.00. When the trial judge pronounced sentence, he stated that the fine “represents the minimal fee that [the appellant] may have paid to private counsel for the able representation that he received in this case.” An appeal
The Commonwealth cites the black letter principle of law that an appellate court will not review the sentence in a criminal case unless it exceeds the statutorily prescribed limits or is so manifestly excessive as to constitute too severe a punishment. See Commonwealth v. Wrona, 442 Pa. 201, 275 A. 2d 78 (1971); Commonwealth v. Bilinski, 190 Pa. Superior Ct. 401, 154 A. 2d 322 (1959). But cf., Commonwealth v. Riggins, 232 Pa. Superior Ct. 32, 332 A. 2d 521 (1974) ; (see separate dissenting opinions of Hoffman, Cercone, Spaeth, JJ.). Under §2504 of the Crimes Code,
In order to impose a fine, a sentencing judge must consider provisions of the Pennsylvania Rules of Criminal Procedure. Rule 1407 (c) provides: “The court, in determining the amount and method of payment of a fine or costs shall, insofar as it is just and practicable, consider the burden upon the defendant by reason of his financial means, including his ability to make restitution or reparations.” Cf. Comment IV to Rule 1405: “In considering whether to impose a fine in addition to another sentence, either involving imprisonment or probation, it would be appropriate for the sentencing judge to accord weight to the following factors: (1) whether the defendant has derived a pecuniary gain from the crime; or (2) whether the sentencing judge is of the opinion that a fine is specially adapted to deterrence of the crime involved or to the correction of the sentence.”
In the instant case, the court knew that appellant had been declared an indigent. Arguably, sentencing an indigent to pay a $5,000.00 fine is per se so manifestly excessive as to constitute too severe a punishment.
Therefore, we vacate that portion of the judgment of sentence wherein the appellant is ordered to pay a fine of $5,000.00.
Watkins, P. J., and Jacobs, J., dissent.
Van der Voort, J., did not participate in the consideration or decision of this case.
. Act of December 2, 1968, P.L. 1144, No. 358, §1; 16 P.S. §9960.1 et seq.
. Act of Dec. 6, 1972, P.L. 1482, No. 334, §1 et seq.; 18 Pa. C.S. §101 et seq.
. The appellant’s application for appointment of counsel listed the following assets: “a. Do you have any money? If so, how much? (1) On the person, none. (2) In custody of the Warden, about ?8.00 (3) In the hank. $350.00 (4) At home. none. (5) Elsewhere, none. b. Do you own an automobile? Yes. Purchased a 1964 Ford Sedan in June, 1973, for $200.00. c. Do you own any real estate? no. d. Do you own any other property or do you have any other assets? nominal e. Does anyone owe you money? no ... i. Where did you work last? Alternóse Construction Company . . . k. What salary or wages were you receiving? Between $250.00 to $300.00 per week ... 4.1 am presently in jail and unable to obtain bail.” Attached to the application is the appellant’s affidavit swearing to the truth of its contents. The court did not inquire as to appellant’s work record after he made bail. Further, even if appellant’s assets did increase during the brief time between payment of bail and trial, clearly his ability to pay a fine in the immediate future was seriously curtailed by the imposition of a prison term. Thus, the only information within the judge’s knowledge was that available in appellant’s original application for counsel.