Commonwealth v. Alicea

449 A.2d 1381, 498 Pa. 575, 34 A.L.R. 4th 878, 1982 Pa. LEXIS 566
CourtSupreme Court of Pennsylvania
DecidedSeptember 13, 1982
Docket327
StatusPublished
Cited by17 cases

This text of 449 A.2d 1381 (Commonwealth v. Alicea) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Alicea, 449 A.2d 1381, 498 Pa. 575, 34 A.L.R. 4th 878, 1982 Pa. LEXIS 566 (Pa. 1982).

Opinions

OPINION OF THE COURT

HUTCHINSON, Justice.

In this direct appeal from judgment of sentence, appellant, Pedro Antonio Alicea, raises the issue of whether the trial court erred at sentencing by considering appellant’s initial defense of an alibi, withdrawn prior to trial, as warranting an increased sentence.1

On the afternoon of April 4, 1978, appellant had an argument with the victim when the latter’s bicycle was stolen. Shortly thereafter appellant purchased a .38 caliber revolver and proceeded to a neighborhood bar. He there encountered the victim who, upon seeing him at the door, exited the bar and walked up to appellant. Appellant shot the victim.2 As a result of this single shot, the victim died approximately one month later.

Prior to trial appellant’s counsel had filed a notice of alibi defense as required by Rule 305(C)(1)(a), Pa. R. Crim. P. The day before trial was to commence, however, he withdrew it.

At trial, appellant proceeded on a theory of self-defense. He testified that, at the time of their initial confrontation, the victim had threatened to kill both him and his family. He also testified that he knew the victim to be a violent person and that he purchased the gun out of fear the victim would make good his threats. At their second meeting, he said the victim approached him outside the bar and stated, [577]*577“You came so that I can kill you. I am going to kill you now.” N.T. at 3.35. Thereupon, he testified, he shot the victim in self-defense.

The trial court, sitting as trier of fact, convicted appellant of possession of an instrument of crime3 and of voluntary manslaughter.4 He was sentenced to two and one half to five years imprisonment on the former, and four to ten years imprisonment on the latter. The sentences were to run concurrently. In imposing sentence the court stated:

I am clearly stating that I did not know anything about the alibi defense, and, of course, the pre-sentence investigators when they recommended probation for you did not know about the two stories you told — I am not saying that I would have followed their recommendations completely, but I would have not given a sentence as long as I have given you.
The sentence that I would have given you would have been — I am giving the total that you would have had to serve in jail — not more than two years in jail — excuse me, not less than two years in jail nor more than ten years in jail.
In effect, what you have gotten is an extra two years in jail on your minimum because of the lie perpetrated upon the Court and because I feel that your continual lying convinces me that you are not on your way toward the good life.

N.T.S.H. at 44-45.

Without asserting that United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) is limited to federal sentencing practices and that Commonwealth v. Thurmond, 268 Pa. Super. Ct. 283, 407 A.2d 1357 (1979), is wrongly decided under Pennsylvania law, appellant distinguishes them and argues the court erred in considering the withdrawn alibi defense as evidence of perjury which would allow enhancement of sentence. We agree.

[578]*578In Grayson the Supreme Court addressed the issue of whether a court could enhance a sentence based, in part, upon its first-hand observation of a defendant’s false testimony at trial. The defendant in Grayson had escaped from a federal prison camp. His account of the flight and the reasons for it was contradicted by rebuttal evidence and by cross-examination of the defendant himself on crucial aspects of the story. The defendant was convicted by a jury and thereafter sentenced. At sentencing the court stated:

In my view a prison sentence is indicated, and the sentence that the Court is going to impose is to deter you, Mr. Grayson, and others who are similarly situated. Secondly, it is my view that your defense was a complete fabrication without the slightest merit whatsoever. I feel it is proper for me to consider that fact in the sentencing, and I will do so.

Id. 438 U.S. at 44, 98 S.Ct. at 2612 (emphasis added in original).

On appeal the defendant argued that the sentence constituted punishment for the crime of perjury, a crime for which he had never been convicted, and therefore was violative of due process. He also argued that allowing a sentencing court to consider arguably perjured testimony of a defendant would chill the right to testify in one’s own behalf.

The Supreme Court rejected both arguments. Instead, it concluded that, since sentencing judges had traditionally exercised wide discretion in terms of the type of evidence relied upon at sentencing, and since such an inquiry is grounded in the legitimate goal of evaluating a defendant’s personality and the prospects for rehabilitation, it was proper for the court to determine defendant’s testimony at trial was perjured and to consider that perjury as a factor at sentencing. In so concluding, the Court stated:

Nothing we say today requires a sentencing judge to enhance, in some wooden or reflex fashion, the sentences of all defendants whose testimony is deemed false. Rather, we are reaffirming the authority of a sentencing judge to evaluate carefully a defendant's testimony on the [579]*579stand, determine — with a consciousness of the frailty of human judgment — whether that testimony contained willful and material falsehoods, and, if so, assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society.

Id. at 55, 98 S.Ct. at 2618.

Although this Court has neither considered nor measured the parameters of Grayson, the Superior Court, in Commonwealth v. Thurmond, supra, did examine and apply its tenets. Affirming the prerogative of a sentencing court to consider false testimony, the court in Thurmond stated:

[Consideration of false testimony is justified only if certain requisites, guaranteeing the probative value of this evidence, are satisfied .... First, the misstatements must be willful.... Unless the defendant has willfully offered false testimony, the fact that the testimony was untrue does not of itself show that the defendant is not likely to respond to efforts at rehabilitation. Second, the misstatement must be material, not of marginal importance .... Only material falsehoods sufficiently bear on a defendant’s character to justify enhancing punishment. Third, the verdict of guilt must necessarily establish that the defendant lied, not merely that the jury did not believe his testimony.... This requirement ensures that a defendant can receive a stiffer penalty based on giving false testimony only when the finder of fact has determined, beyond a reasonable doubt, that the testimony was willfully false. Fourth, the verdict must be supported by sufficient credible evidence. If the jury’s verdict is to form the basis for enhancement of sentence, that verdict must have a rational foundation in evidence of record ....

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Commonwealth v. Alicea
449 A.2d 1381 (Supreme Court of Pennsylvania, 1982)

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Bluebook (online)
449 A.2d 1381, 498 Pa. 575, 34 A.L.R. 4th 878, 1982 Pa. LEXIS 566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-alicea-pa-1982.