*1 lеss to read into the impermissible complaint Appellee within her official acting capacity.
Since the Appellant’s complaint stated a cause of action upon which relief could be granted since Appellee’s privilege does not on the face of appear complaint, should not have been complaint dismissed.
The order of thе lower court is reversed and the case is remanded proceedings consistent with this opinion. Jur- isdiction is not retained.
This case was decided prior to the expiration SHERTZ, J.’s, commission of office.
DiSALLE, J., did not participate in the consideration or review of this case.
Superior Court of Pennsylvania. Submitted June 1979. Filed March 1982. Petition Appeаl for Allowance of Denied June *2 Jr., Robert T. Gownley, Defender, Assistant Public Lacka- wanna, for appellant. *3 Preate, Jr., D. Scranton,
Ernest District Attorney, Commonwealth, appellee. SPAETH,
Before and SUGERMAN, STRANAHAN JJ.* SUGERMAN, Judge: has an order of the lower
Appellant appealed court deny- his motion for reconsideration ing of sentence. Appellant appeal, contends on as he did below in suppоrt motion, of his the sentence imposed that him was upon exces- manifestly sive and thus constituted an abuse of the lower court’s discretion. We affirm. 10, 1977,
On then May Appellant, juvenile a seventeen years age, arrested and in a charged juvenile series of with petitions two counts of five robbery, counts of burglary two and counts of criminal On attempt. May a following certification hearing, Appellant’s cases were transferred court to the by juvenile criminal division for trial. was thereafter indicted Appellant on all a charges by and the cases were listed grand jury for trial.
* Stranahan, Judge Pres. John of the Court of Common Pleas of Q. County, Pennsylvania, by sitting designation. Mercer is Judge Sugerman, Leonard of the Court of Common Pleas of Ches- County, Pennsylvania, by sitting designation. ter 26, 1978, to pleaded guilty January Appellant On May following preparation indictments and on was sen- Investigation Report, Appellant of a Presentence to serve a term of of six months to one imprisonment tenced of the five counts of upon each and one to two year burglary each of the two counts of All upon sentences years robbery. ordered the court to be served consecutively, were result- in of confinement of to period a total 4V2 ing years. The record of the indicates guilty plea proceeding while what engaged is best characterized as a Appellant, in “crime was an active in a spree”, participant series of and burglaries robberies committed Lackawanna County incidents, a In the first of these during five-day period. and co-defendant twice a Appellant burglarized a used car and day, lot the same removed an automobile and other each on the same property following entry. Again, day, Appellant and his co-defendant committed an armed robbery at a service station. During course the robbery, held a rifle or sawed-off to an Appellant shotgun attendant’s head while removing approximately from the station. $350 Yet on the same a drive-in again day, Appellant burglarized restaurant, and his co-defendant removed valued at property more than On the and others following day, Appellant $250. an automobile burglarized dealership and stole another auto- mobile with cash and other along Again, on the property. Appellant same a co-defendant day, attempted rob another service station. was armed with Appellant a 12- wore gauge shotgun disguise. The service station *4 attendant refused to with a comply demand for money, “freeze”, to and causing Appellant apparently both thereup- on fled. the same the record
During period, reveals that Appellant store, to attеmpted burglarize drug burglarized a mobile home, extensive causing damage, and stole another automo- bile. this Appellant’s activity during “spree” resulted in the indictments, of separate return nine containing sixteen alia, counts and inter with the theft charging Appellant, many thousands of dollars in movable property.
292 observed,
As we have
was sentenced to a total
Appellant
of confinеment of 4V2 to 9
to five
period
years upon
pleas
counts of
two counts of
and one count of
burglary,
robbery
The remaining counts that did not
attempted
burglary.
of a nolle
prosequi.
subject
the
merge
were
of review when confronted
a chal
scope
by
Our
the
of a sentence is well known and has
lenge
severity
to
Where no
mandated sentence
oft-repeated.
statutorily
been
trial
in this
are
judges
is
Commonwealth
vested
implicated,
sentencing.
with broad discretion in
We will not disturb a
shown,
of sentence unless an abuse of discretion is
judgment
discretion,
to constitute an abuse of
a sentence
order
exceed the
limits or be
statutory
manifestly
must either
Cottle,
Commonwealth v.
377,
493 Pa.
426 A.2d
excessive.
Wrona,
v.
Commonwealth
442 Pa.
275 A.2d
(1981);
598
Commonwealth v.
Campolei,
78
284
(1971);
Pa.Super.
Michenfelder,
Commonwealth v.
(1981);
293
Weaver,
Commonwealth v.
140, 149
280
(1977);
A.2d
Pa.Su
v. Turecki,
Commonwealth
481,
(1980)3;
Appellant argue sentence him exceeded the imposed upon statutory limits. See, 3502, 3701, 18 901(a), Pa.C.S.A. 905 and 1103. We §§ must therefore determine whether the sentences imposed Common- are some other reason excessive. manifestly others, by possibility offenses the defendant and and the
rehabilitation ...”
Wicks,
305, 314,
1223,
Pa.Super.
v.
265
Commonwealth
401 A.2d
(1979).
1227
3. We have held that in the absence of a statement of reasons for the
imposed, we are unable to
sentence
review a sentence and must
Weaver, supra,
Pa.Super.
483,
remand. Commonwealth v.
280
at
Counsel also invited the court’s attention to a of number attributes, Appellant’s personal and certain aspects of Ap- in the pellant’s participation crimes which were mitigating in сounsel’sview. all Nearly such factors directly implicated guidelines of the and Sentencing Code were clearly before Court. sentences,
Prior to instant imposing the the court set forth its reasons on the record thusly:
“THE COURT: tion I have [5] very, examined very carefully defendant’s presentence investiga taking into account all of the and, facts course, contained therein of in light serious ness of here, crimes, the crimes involved course, these of are the most serious we perhaps have the books today. I’ve also taken into consideration in addition to the seri incidents, ousness of these the well being the people the protection of the people in Lackawanna County we certainly because have to have that in mind in all of these tyрes of proceedings, protection of our people. course, Of you have evidenced by these incidents great disregard for life I’ve property. taken this into consideration. It very evident these incidents which include two robberies burglaries and five your criminal In disposition. these, addition the criminal disposition you have throughout your life which is evi denced by your juvenile court record. As a result of the concern that the court has for you and possibility Investigation Report part 5. The Presentence not of the record. all of these programs, taking rehabilitation matters into consideration and based . .. were there- upon [sentences upon imposed].” convened hearing upon Appellant’s
At the Motion for Sentence, Reconsidеration of the court its amplified earlier remarks:
“THE I add there might just paraphrasing, COURT: were other matters I took into consideration in addition to what mentioned, Mr. you Gownley first [defense counsel]. gave of which was that I careful consideration to the very I took pre-sentence investigation. Secondly, into consider- ation his involved in these disposition criminal acts. I *7 took intо his disposition throughout consideration criminal his life as evidenced juvenile was court record. I also mentioned in proceeding [sentencing that proceeding] I that was concerned about of rehabilitation possibility 4-5, 9, programs.” N.T. June our It not function to determine whether we agree court, with these statements of the sentencing “in the sense court, that if we had been the we sentencing should have said the same the same thing imposed sentence.” Com monwealth v. 284 Pa. Campolei, supra, Super. at 425 Rather, A.2d at 822. we must evaluate three factors: whether the confinement imposed Appellant is consistent with the of the protection public, offenses, of the gravity and the rehabilitative needs of Appellant. see, Id. And 251, 256, Commonwealth v. 490 Pa. Edrington, 416 A.2d 457 (1980); Knight, Commonwealth v. 479 Pa. 387 A.2d (1978); Martin, 1297 A.2d 658 (1976). bar,
At it is apparent sentencing judge placed great emphasis upon Presentence Investigation Report. counsel advised the Appellant’s court that he and his client had report. reviewed the During argument, Ap counsel discussed the pellant’s report and informed the court offenses, juvenile of Appellant’s prior including an escape juvenile from a detention all of which facility, were con- in the tained There is no report. indication in the record that the report any respect inaccurate. itself,
The court in its brief statement at the time of sentencing above, quoted reflects a consideration of the offenses, gravity Appellant’s Appellant’s prior contact juvenile with the justice system, the faсts concerning Appellant’s individual characteristics and background as set forth in the Presentence Investigation Report. The court’s statement also exhibits its concern for Appellant’s rehabili- requirements. tative
While we should have perhaps taken greater comfort in a more detailed statement of reasons underlying sentences imposed6, including those aspеcts Presentence Inves tigation Report upon relied7, which the court we cannot say that the court failed in its obligation to consider the factors iterated in Campolei, supra, or the Sentencing Guidelines, 18. Rather, Pa.C.S.A. 1301 et seq. it appears § to us that the court sentencing considered and applied the guidelines of the Code and we are thus unable to say on this record that the court its manifestly abused discretion.8
Affirmed.
SPAETH, J., files a dissenting opinion. SPAETH, Judge, dissenting: *8 I find myself unable to agree with the majority that the lower court has adequately stated its reasons for the sen- Unfortunately, 6. provide the lower court has failed to us with an (cid:127) opinion 1925(a). as mandated Pa.R.A.P. Compare 7. the statement of reasons at bar with those found deficient Butch, supra, Kostka, Commonwеalth v. and Commonwealth v. supra. is, may 8. It of course upon clear that a court not rest a sentence the Butch, seriousness of the crime supra; alone. Commonwealth v. Martin, 118, Commonwealth v. (1976); 466 Pa. 351 A.2d 650 Com Stufflet, supra; Walton, monwealth v. supra. Commonwealth v. It mind, however, Appellant pleaded must be borne in guilty that at bar complicity to his degree in seven felonies of felony the first and one degree. imprisonment the second The maximum term of for a felony degree years, felony of the first is 20 and for a of the second degree, years. 10 18 Pa.C.S.A. §
297 vacate the sentence and I should therefore imposed. tence resentencing. remand statement of full and careful majority’s
I
the
acknowledge
sentencing judge’s responsibilities.
the
defining
the cases
respоnsibil-
I tried to summarize those
another occasion
On
now:
ities,
summary
it
be useful to refer to
may
of the
is a fact-
sentencing judge
The first responsibility
must be sure that he has
judge
finding responsibility;
information to
him make
him “sufficient
enable
before
circumstances of
offense and
of the
determination
the defendant.” Commonwealth v.
the character of
373, 281,
1336,
418
1340
275
Ct.
A.2d
Superior
Pa.
Doyle,
v. Wicks
Superior
Pa.
(1979) сiting Commonwealth
[265
305,
(1979)
A.2d 1223
second responsibility
Ct.
401
].
is an
sentencing judge
application-and-explanation
must
to the information he
judge
apply
responsibility;
in the
guidelines specified
has
gathered
statutory
1052,
345,
Code, Act of Dec.
P.L.
No.
Sentencing
1,
1321 et
and then ex-
seq. (Supp.1977),
18 Pa.C.S.
§
§
how that
has resulted in
application
on the record
plain
v.
imposed.
Doyle, supra,
the sentence
Commоnwealth
at
A.2d 573-574 Here, whether the ful- sentencing judge we cannot tell While the fact-finding responsibility. judge says filled his defendant’s presentence investigation that he “examined the into all the con- taking account facts very, very carefully ....,” 776, he tell tained therein At does not us what those the report facts were. Nor did he make of the presentence of the record. We therefore cannot know investigation part before him “sufficient information to judge whether the had him to make a determination ... of the character of enable the defendant.” failed
Also, sentencing judge application- to fulfill his *9 His brief statement and-explanation responsibility. very best an only oblique guidelines makes at reference to the in Sentencing Code, the and there no specified explanation is of believed his judge the sentence consistent with those why guidelines. The statement only conclusions, series of with no or concreteness specificity being added by any Indeed, to the the reference record. statement raises more did questions than it resolves. What the mean judge his by reference to “the criminal disposition you throughout have life?” What was “evidenced your juvenile court [the] What “the of possibility record?” was rehabilitation pro- grams?”
At counsel sentencing proceeding, appellant the of- in mitigation fered several of arguments appellant’s of- fenses; counsel to the argued following effect. Appellant the was 17 old when offenses were years cоmmitted. He involved; the him, was not others with only person were and one was of them an adult who had fled the In jurisdiction. the cases, some of did not break appellant in but acted as a case, In one he took a gun away lookout. from one of the others, He saying, “I can’t do this.” gave detailed state- the juvenile authorities, ments to and police freely admitting involvement, plеaded to all guilty of offenses. He further demonstrated his change attitude when he was in trial. He jail, awaiting had risen to the position of trustee permitted and was to leave his work wing to as a kitchen, cook in the where he had access to knives. Accord- counsel, ing to the pre-sentence report showed that appel- juvenile lant’s offenses had not been “in the same vein” as he offenses to which had pleaded guilty, appellant “was never with guns involved before.” N.T. 4. sentencing
It judge’s responsibility respond to this essence argument. The law of Pennsylvania sentencing is that the sentence be individualized. Common- Riggins, supra. point a state- requiring ment of reasons for the sentence is to ensure it is an sentence, individualized consistent with the Sentencing Here, Code. judge’s Id. sentencing statement amounts brief, remarks, to a few only conclusory which could have *10 uttered in case. In Common- virtually any robbery been Farrar, Ct. 413 A.2d we Superior said: responsibilities Sentencing imposes
[T]he [the Code] do fade sentencing judge not away disappear upon utterance of the formula that ‘a lesser sentence would the seriousness of the crime.’ The dеpreciate judge must state, record, with to the reference he believes that why would be so. thus will the Only ‘appellate courts [be to ascertain whether the sentence was based enabled] accurate, upon sufficient and information proper [citing v. Riggins, supra.] of sentence should judgments be reversed and the case remanded to law. re-sentencing according
Superior Pennsylvania. Court of
Argued Sept. 1980. Filed March