Commonwealth v. Straw, Appellant.
Superior Court of Pennsylvania
March 29, 1976
238 Pa. Super. 535
Louis R. Paulick and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.
OPINION BY JACOBS, J., March 29, 1976:
This appeal follows appellant‘s conviction, on December 4, 1974, of possession of a prohibited offensive weapon,
Appellant was tried on a six-count indictment. He was acquitted on charges of failure to stop at the sсene of an accident, failure to identify himself at the scene of an accident, failure to render assistance at the scеne of an accident, simple assault, and resisting arrest. He was convicted on the remaining charge, possession of a prohibitеd offensive weapon (a blackjack), and was thereafter sentenced, on January 10, 1975, to thirty days in jail and to pay a fine of $100.00. No post trial motions were filed. The facts of the case are set out in an “Agreed Statement of Facts“, Appellant‘s brief at 3a-6a. In sum, appellant was charged with having passed an unmarked Monroeville Police car at a high rate of speed, and, upon being chased, to have attempted to elude the unmarked car and two marked cars, resulting in his running into one of the marked cars. The blackjack was observed in the front of appellant‘s car after he was subdued. Appellant claimed he was unaware of the sirens employed or the identity of his pursuers until just before he made contact with a marked car.
Appellant‘s only argument here is that the sentence imposed was excessive under the circumstances of this
We find no merit in appellant‘s contentions. The crime of whiсh he was convicted is a misdemeanor of the first degree, allowing imposition of a fine of $10,000.00,
It has long been established that the sentence imposed upon a convicted defendant is within the sole discretion of the sentencing judge, Commonwealth v. Williams, 456 Pa. 550, 317 A.2d 250 (1974), and that the lower court‘s discretiоn is very broad in the matter of sentencing, Commonwealth v. Cox, 441 Pa. 64, 270 A.2d 207 (1970); Commonwealth v. Rodriquez, 229 Pa. Superior Ct. 449, 323 A.2d 396 (1974). It is equally well-settled that an appellate court will not find an abuse of that broad discretion, рroviding that the sentence is within statutory limits, unless the sentence imposed is so manifestly excessive as to inflict too severe a punishment. Commonwealth v. Person, 450 Pa. 1, 297 A.2d 460 (1972); Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Reese, 230 Pa. Superior Ct. 471, 327 A.2d 189 (1974); Commonwealth v. Warner, 227 Pa. Superior Ct. 291, 324 A.2d 361 allocatur refused, 231 Pa. Superior Ct. xxv (1974).
Judgment of sentence affirmed.
DISSENTING OPINION BY SPAETH, J.:
Appellant was tried before a jury on a six count indictment and was acquitted on the first five counts (failure to stop at the scene of an accident; failure to identify himself at the scene оf an accident; failure to render assistance; assault; and resisting arrest). He was found guilty of possession of a prohibited offensive weapon, and was sentenced to serve 30 days in prison and to pay a fine of $100. The only issue on appeal is the validity of this sentence.
“THE COURT: Well, we‘re cognizant of the fact that ignorance of the law is no excuse. The surrounding circumstances in this case, while this man was charged with violation of the Motor Vehicle Code and simple assault and resisting arrest and the jury brought in a verdict of not guilty as to those counts, it found him guilty of unlawful possession of a prohibitive [sic] weapon.
....
We‘re satisfied from the circumstances that the dеfendant was certainly involved and knew what was going on when the officers gave chase and chased him around the buildings out there in Monroеville, and when they finally caught up with him and placed him under arrest that, of course, the jury found him not guilty on those charges, but they did find him guilty of possession of a prohibitive weapon; namely, a blackjack.
....
MR. ROSSETTI: Your Honor, I would ask that you reconsider your sentence in the light of the circumstаnces surrounding this case.
THE COURT: Well, the circumstances surrounding this case are the very reason, basically, that he is committed to jail for thirty days.” (Rеcord at 12a, 13a)
The majority reasons that because the sentence imposed is well below the statutory maximum for a misdemeanоr of the first degree, it cannot be considered excessive. I do not agree. Any sentence, short or long, based upon charges of which a defendant has been acquitted, may be excessive. See Commonwealth v. Hewlett, 223 Pa. Superior Ct. 55, 296 A.2d 846 (1972) (reconsider-
A similar issue was presented in Commonwealth v. Lockhart, 223 Pa. Superior Ct. 60, 296 A.2d 883 (1972) (WRIGHT, P.J., and WATKINS, J., dissented). There, the defendant had been convicted on two indictments. Concluding that only one offense was involved, we quashed one indictment and remanded for resentencing on the remaining convictions:
“As cоnviction on this one count was constitutionally invalid, the cause should be remanded for resentencing on the remaining valid convictions. Rеcently, Circuit Judge FRIENDLY made a similar recommendation, saying: ‘When the invalidity of the conviction on one count which may have influenced the sentence becomes apparent on an appeal, whether on direct or collateral attack, the proper course is usually to vacate the sentences and remand for resentencing on the valid counts without consideration of the invalid ones.’ McGee v. United States, 462 F.2d 243, 246 (2d Cir. 1972).” Id. at 65, 296 A.2d at 886.
See also Commonwealth v. Tisdale, 233 Pa. Superior Ct. 77, 83, 334 A.2d 722, 725 (1975) (concurring and dissenting opinion by SPAETH, J., joined by HOFFMAN, J.)
I would therefore remand for resentencing.