*2 SOLE, BROSKY, DEL Before POPOVICH and JJ. POPOVICH, Judge: from appeal
This an of sentence judgment entered Philadelphia County, the Court of Common Pleas of following appellant the conviction on two counts murder in the first degree. jury The determined that conspired with Herbert Leitner and Edward in the style slaying Papini Peterson execution of Mario girlfriend Logan. Kathleen 1) raises five Appellant appeal: issues Did the trial permitting court err uncharged drug evidence crimes admitted; 2) insufficient; to be Was the evidence 3) Did the err by trial court permitting Assistant District Attorney F. concerning Charles testify why Common- *3 wealth witness Wayne Szczesniewski was not with any murders; 4) crime relation to the Did the trial court permitting err previous evidence months attempt admitted; earlier to kill Papini 5) Mario to be and Did the sentencing court abuse its discretion to failing set forth adequate gross reasons to the justify disparity sentences imposed on appellant accomplices and his who the were principals in the murder.
Having briefs, reviewed the record and the parties’ we find that the trial court has adequately addressed and correctly disposed allegations of the first four error raised by appellant. Accordingly, opinion affirm on we the below, of the court adopt opinion and we the of the Honora- M. Lynne ble Abraham as our purposes own allocatur.
We comment further on only appellant’s address attack his sentence. Appellant Judge was tried before Abraham imposed who then two life Appel- consecutive sentences. accomplices lant’s George were tried before J. Judge Ivins who, at the time of appellant’s sentencing, already imposed two life upon concurrent sentences each Leitner argues Peterson. Appellant Judge Abraham erred by failing place on adequate the record reasons for the
620 gross disparity appellant sentences between Herein, accomplices. upon following relies Holler, in Commonwealth language 304, v. 326 Pa.Super. 310, 1103, (1984): 1107 recognize
... We upon incumbent guided by court lower court be sentence different appellant’s co-defendants. Commonwealth v. on imposed Neal, 375, (1978). 258 A.2d Pa.Super. 392 845 Hollerbush, Also see Commonwealth v. Pa.Super. 298 (1982). Nevertheless, 397, 444 also A.2d 1235 we would great out should point disparity that there not be unless on codefendants facts exist imposed sentences v. See Commonwealth sentences. unequal warrant Sinwell, Com- (1983); A.2d 957 Pa.Super. 311 457 Parry, monwealth v. Pa.Super. exist
(1982). If court that sufficient factors believes sentences, the reasons disparity warrant the record. therefore articulated on should be Sinwell, supra. 326, 536 Pa.Super. Myers, also See (1988). A.2d “life sen about
Despite misconception common as the just tences”, Pennsylvania a “life sentence” appellate After final life. implies, imprisonment name Governor, on the sentence, only the based of the review life Pardons, may commute Board of of the recommendation 81.1, et 37 Pa.Code parole. See to life § imprisonment life sentences were only indicate seq. Statistics *4 average and that 1980 and 1987 commuted between years.1 19.1 those commuted served for time life sentence, life two consecutive Due to nature life two concurrent than longer no are, reality, in sentences All would life sentence. or, matter, one that for sentences 1980-1987, Report, reveals Statistical Department of Corrections 1. The following: Discharged Total Died Commuted Total Lifers Year 22 6 16 848 1980 10 5 5 964 1981
621 require appellant spend his life in prison. Instantly, it is ludicrous to think that if the Governor decided to commute appellant’s the first of life on parole, sentences to life he similarly would not also commute his second sentence. Thus, “great we find that there not disparity” is a between appellant’s accomplices’ consecutive life sentences and his concurrent life sentences.
Second, appellant
accomplices
and his
appeared be
fore
judges
sentencing. Therefore,
different
for
Judge
required
explain
Abraham
not
alleged
disparity
in sentencing.
Myers,
Commonwealth v.
430;
536 A.2d at
Fuller,
(the
Pa.Super. 605,
(1990)
396
Moreover, assuming
Judge
Abraham was re
quired to explain her
for
reasons
the difference in sen
tences, we find
place
that she did
adequate reasons
Year
Discharged
Total Lifers
Commuted
Died
Total
1982
1074
4
4
8
1983
1195
3
8
11
1984
1311
7
8
1
1985
1429
2
8
10
1986
1544
7
8
1
1987
1674
5
5
0
Total
50
Average
yrs
Time
yrs
Served
yrs
19.1
9.9
13.5
Holler,
1107,
2.
language
We note that the
regarding
at
requirement
"great disparity”
in sentence
explained,
must be
approval
which was
Myers,
cited with
536 A.2d at
is dicta with
questionable support. Although the Holler court commented on dis-
parate
judges,
sentences
different
unnecessarily
did so
as the
already
court had
resentencing
determined
required
remand
woefully
inadequate
because
sentencing record. Commonwealth
293, 296,
Krysiak,
Pa.Super.
(1987),
allocatur
denied 518 Pa.
record.
life
Instantly, appellant’s
mandatory.
sentence was
1101(a). Judge
only
18 Pa.C.S.A.
Abraham’s
discretion
§
life
impose
consecutively
was whether to
the
sentences
or
In deciding
impose
consecutive life sen
concurrently.
tences,
specifically
Judge Abraham
stated
she believed
Judge
imposed by
“inappropriate,”
the sentences
Ivins were
not
severity
appellant’s
and that she
diminish the
would
“for
by imposing
crimes
concurrent sentences
two murders
well,
killed,
saying,
people
you get
two
are
two
by
reasons,
Those
price
conjunction
one.”
with
record,
sentencing
demonstrate no abuse
remainder of
Fuller,
A.2d at
the court below. See
of discretion
Devers,
v.
Pa.
Commonwealth
citing
(1988).3
affirmed.
Judgement of sentence
dissenting
SOLE, J.,
opinion.
files
DEL
SOLE, Judge, dissenting.
DEL
trial
of the
Majority’s
from The
affirmance
I must dissent
Assistant District
permitting
court’s action
Thus,
precise proposition
judge.
do not address the
those cases
ent-
they were cited.
for which
sentencing
However,
individual
must remember
when
we
Pleas, they
part
Court of Common
judges
simply
are
of the same
when
to co-defendants
mete
similar sentences
endeavor to
out
should
justice so dictates.
of our esteemed
only
address the dissent
further
3. We comment
Instantly,
colleague
Joseph Del Sole.
the Honorable
solely
to rehabili-
was offered
Attorney Charles F.
District
Wayne Szczesniewski.
credibility
witness
of Commonwealth
tate
Thus,
permitted the
did not err when
court
we
that the lower
find
credibility
its
witness
to rehabilitate
Commonwealth
Szczesniewski.
strategy,
appellant’s trial
succinctly characterized
lower court
The
sought
portray
[Wayne] trial counsel
attempt to discredit
"In an
Stuart,
and
create the inference
accomplice,
as the
placed
on Stuart because
falsely
corruptly
blame
Wayne ex-
preferential and
Philadelphia offered him
prosecutor’s office
do
for him
favors as incentives
ceedingly
treatment
beneficial
doubt,
should
the Commonwealth
p.
Op., 25. Without
Trial Ct.
so.”
been
has
witness whose
rehabilitate a
permitted to
be
Griffin,
567-
511 Pa.
Commonwealth
defense.
assailed
570,
Johnson,
(1986);
872-873
*6
237, 239-242,
467,
Nelson,
(1971);
469-470
Commonwealth
527-533,
(1980).
Pa.Super.
532-533
Gallagher’s
judice,
Attorney
the circumstances sub
District
Under
testimony
suggestion
plainly
defense
was
admissible to rebut
counsel's
Wayne
exchange
falsely
appellant
preferential
accused
in
for
by
Griffin,
Cf.,
treatment
the Commonwealth.
at 872-873
A.2d
promises
(proper
permit
trooper
testify
to
to
that no deals or
state
statement).
exchange
prior
in
for witness’
were made
consonant
Attorney Gallagher
appellant
testified
receive
District
did not
exchange
response
preferential
testimony.
to
treatment
for his
In
Wayne
prosecuted
counsel’s
not
for the
defense
assertion
was
present
exchange
testimony,
proper
murders in
to
for his
it was
Gallagher
testify
permit
Attorney
process
as to
he
District
to
the
used
Further,
Wayne.
to decide whether to indict
testimony
we note that much of the
complains
about which
now
was
on cross-
elicited
counsel.
examination
defense
case,
asserts,
not a
This is
as the dissent
where the Commonwealth
impermissibly introduced evidence on direct examination which
credibility
for the
of
vouched
its own witness. Commonwealth v.
Bricker,
(1990)
inapposite presently.
525 Pa.
A.2d 147
Therein,
Attorney
the United States
for Western
of
the
District
Penn-
sylvania,
Attorney Allegheny County
Attorney
the District
of
and the
Pennsylvania placed
imprima-
for
General
the Commonwealth of
the
support
proposition
tur of their offices as
that the Common-
“telling
Instantly,
wealth witnesses were
Gallagher’s testimony
the truth."
District
only
Wayne’s
offered
was
to rehabilitate
credi-
bility
corrupt
and
rebut defense counsel’s
of
assertion
motives and
Moreover,
Bricker, supra,
only
bias.
the
not
evidence
enhanced the
witnesses,
un-impeached credibility
otherwise
also
of Commonwealth
but
opportunity
tended
demonstrate that the accused had the same
as the Commonwealth’s witnesses to come forward
admit his
Thus,
activity yet
jury might
involvement in criminal
refused.
the
have focused on the fact that Bricker did not take the
stand in
own
presently.
defense. Such was not the case
addition,
Seese,
In
permitted counsel, over of defense objection and counsel’s Further, Motion for a Mistrial denied. I believe that trial judge’s attempt at a cautionary instruction was inadequate prejudicial testimony. correct effect of the defendant, Szczesniewski,
This Stuart with a murder, prosecution’s theory double and was the that the murders stemmed from defendant’s involvement large drug manufacturing scale scheme. distribution persons other had been tried and were also separately Two In order convicted of these crimes. to connect the defen- *7 night on the of the murders the dant with events brother, Wayne. called as a witness the defendant’s concerning testified detail his involvement with Stuart He theory in the It was the Commonwealth’s drug business. victims, the murders committed because the who that were drugs for that the sellers, refused to drug pay were Therefore, in order supplied. and defendants manufactured deals, these victims drug for future to maintain to example pay to who failed to killed as an others were be amount of a substantial supplies. for their While there was only the drug operation, to the respect with testimony testimony things as to those charged, involves his shall not be this may may thinking, not be covered on which or on in his that went Zucker. Mr. cross-examination agree or you may with his decision that doesn’t mean that That not, you may may choose. if disagree You or you with him. can’t regard testify today is with who only purpose he is here The Wayne charge and what were not to was that made the decision it it, he correct or incorrect things not that that went into decision, jury to make. judgment for making that’s a Attorney sum, permit proper District it was In we find argument counsel’s testify to rebut defense Gallagher in order exchange for given treatment favorable Wayne Szczesniewski Further, cautionary instruction and testimony. lower court's his jury’s abundantly it was the clear that jury instructions made final therefore, credibility, reversi- Wayne’s to assess exclusive function Farquharson, committed. ble error was not (1976). A.2d 545 testimony Wayne could link this defendant with events night of the murders. During examination, his direct Wayne related that his brother him directed to meet one of the other persons involved who directed him to drive the man” “hit to the place were the place. murders took Later that evening, Wayne testified that he person retrieved this went they drug back to the plant. cross-examination, On ad- Wayne mitted that he fairly sure that the murders were going to be committed evening he Leitner, drove Herbert who was earlier convicted for shooting victims, to the Wood- Inn, bine and further admitted to involvement the crime. (Record 562-563) Also, pp during cross-examination, it was established that was never in these homi- cides or potential other crimes in Pennsylvania. In addition it was shown that an Assistant District from Philadelphia accompanied Wayne to a proceeding court New Jersey where he received a probationary sentence for a pending, drug-related crime. testified that no agreement existed him between and any prosecuting au- thority exchange leniency in the murder cases.
In order to rebut the obvious inference that such an agreement had been reached and to rehabilitate the witness’ credibility, prosecution called Assistant District Attor- ney Gallagher Charles F. to the stand. Mr. *8 testified that no deal was reached with exchange for his However, testimony. he was asked objection over why Wayne was not this matter and testified:
A: Based on of my review evidence that produced was the grand statements, jury, that’s all the not only by the Szczesniewski else, brothers everyone but it was clear that Wayne just an employee of this so-called chemi- plant was, fact, cal drug which a It factory. was clear he was not involved in—
(R 726-727). pp. No,
A: no deals were ever made with Wayne Szczes- niewski for his I testimony. deals, mean there were made, any agreements quid pro quo, in other never words, for him or go that we would bat that we would anything testimony. offer him for his I beginning from the met It was clear when all he to do was come Szczesniewski that wanted forward him. And there never get this incident behind were nor there testimony, offered to him for his deals any our office the Camden by upon influence made ... any of Office as far as resolution County Prosecutor’s County in Camden ... Wayne’s cases over 730-731). (R. pp. goes the Assistant District testimony by
This It is effect rehabilitating witness. beyond far testimony is that the witness’ by the Government statement investigation of all the referring to his review By true. placing Mr. disposal, materials at his related of that were on the version events imprimatur ruled inadmissible has been of evidence type This Wayne. Bricker, 525 Pa. In our courts. Pennsylvania 147, (1990), Supreme Court A.2d evidence that vouch- introducing practice condemned own witnesses. credibility of the Commonwealth’s es for the the Common- bolstering credibility, held that so It further to a fair trial. right the defendant’s violated 439, 443-44, 517 Seese, 512 In Commonwealth (1986), the court stated: A.2d jury of the province upon It is an encroachment credi- of a witness’ on the issue testimony expert permit testimo- Indeed, expert to permit bility. omitted] [citation determining purpose for the ny fact to trier of an invitation “would be witness relying the facts ascertain responsibility its abdicate in a expert premise questionable upon omit- a judgment, such to make [citation position better ted] as to the if expert postulated also
Seese
admitted, (in
individuals were
classes
of distinct
veracity
one could
activity),
in criminal
involved
persons
this case
*9
imagine experts testifying as to the
veracity
the elderly,
ofor
various ethnic
or
groups,
persons employed in various
trades or professions, etc. Such
would
testimony,
encour-
age jurors to shift their focus from determining the credibil-
ity of a particular
testified,
witness who
and instead defer
to the expert’s assessment of the
veracity
the class of
people to which the
Id.,
witness belonged.
Such is the danger particularly when Mr. Gallagher, an Assistant District Attorney, and therefore an “expert” in prosecuting criminal suspects, gives opinion that Wayne being truthful in order to “get this incident behind him.”
The trial judge’s cautionary instruction was inadequate to remedy this error. That instruction advised the jury that they were not to be concerned with whether they agreed or disagreed with prosecution’s decision not to charge Wayne with these crimes. She further stated that this witness presented to establish agreement that no reached with the reason for the decision not to prosecute. Nowhere in this instruction was the jury cau- tioned that Mr. Gallagher’s opinion about the truth of Wayne’s or statement Mr. Gallagher’s opinion of Wayne’s
involvement were to be disregarded, since they are not to be considered by the jury. By this statement I do not mean to imply that a cautionary instruction could have corrected the prejudicial effect of this I testimony. merely point out that given instruction in this case could never have done so. Therefore, I dissent and grant would a new trial.