Commonwealth v. Bowersox

690 A.2d 279, 456 Pa. Super. 260, 1997 Pa. Super. LEXIS 381
CourtSuperior Court of Pennsylvania
DecidedFebruary 18, 1997
DocketNo. 01069
StatusPublished
Cited by9 cases

This text of 690 A.2d 279 (Commonwealth v. Bowersox) is published on Counsel Stack Legal Research, covering Superior 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. Bowersox, 690 A.2d 279, 456 Pa. Super. 260, 1997 Pa. Super. LEXIS 381 (Pa. Ct. App. 1997).

Opinion

TAMILIA, Judge:

Ricky Lee Bowersox appeals from the May 1, 1996 judgment of sentence imposing consecutive terms of imprisonment of eighteen (18) to forty-eight (48) months and six (6) to twenty-four (24) months. Following a jury trial, appellant was convicted of burglary1 and criminal conspiracy.2

Briefly stated, the record in this case reveals that on October 29,1998, appellant and his cousin, Stanley Bowersox, burglarized a pet store in Erie, Pennsylvania. Stanley Bowersox had obtained a key to the pet store from his then-girlfriend Linette Healey, an employee of the pet store. Shortly after the burglary, appellant gave a statement to Officer Tom Wager of the Wesleyville Police Department in which he admitted entering the pet store with Stan, but denied that he took any money, claiming instead that Stan took the money. Appellant also claimed that he believed Stan “had to pick something up” for his girlfriend, N.T., 3/14/96, p. 91, and that he was unaware that Stan intended to steal from the store. On the other hand, Stan gave a statement in which he indicated that he gave the key to appellant and that only appellant entered the pet store and came out with the money. Appellant and Stan testified to their respective stories at trial. Although a warrant was issued for appellant’s arrest on February 3, 1994, he was not apprehended until June 27, 1995. Following trial, appellant was convicted and received the above-mentioned sentences.

On appeal, appellant claims his sentence was manifestly excessive and unreasonable because he had no criminal record, had employment waiting for him at the time of sentencing and had a nine-year old daughter with whom he wished to maintain contact. Appellant also claims the court, in imposing sentence, improperly relied upon its belief that appellant had lied to the jury. As to this latter claim, appellant argues that, “Relying on a belief in perjury would exert a ‘chilling effect’ on all accuseds — be they innocent or guilty — who might wish to exercise their fundamental absolute constitutional right to testify in their own behalf.” (Appellant’s brief at 7.) Since appellant is challenging the discretionary aspects of sentencing, we must determine whether, he has raised a substantial question as to the appropriateness of his sentence under the Sentencing Code as a whole. See 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 18 (1987).

“Although the existence of a substantial question must be determined on a case-by-case basis, the Superior Court will generally [281]*281review the discretionary aspects of sentencing where a colorable argument is made that the actions of the sentencing court were either inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Groft, 424 Pa.Super. 510, 520, 623 A.2d 341, 347 (1993). However, the Superior Court has “held that a claim of excessiveness of sentence does not raise a substantial question so as to permit appellate review where the sentence is within the statutory limits.” Commonwealth v. Jones, 418 Pa.Super. 93, 106, 613 A.2d 587, 593 (1992) (en banc).

Instantly, as to appellant’s excessiveness claim, we note that the crimes for which he was sentenced, burglary and criminal conspiracy, were graded as a first degree felony and a second degree felony, respectively. Accordingly, the maximum sentences faced by appellant were 20 years for burglary, 18 Pa.C.S. § 1103(1), and 10 years for conspiracy, id., § 1103(2). Since appellant’s consecutive sentences of 18 to 48 months and 6 to 24 months fell within the statutory limit, his claim that the sentences are excessive does not raise a substantial question for our review. Commonwealth v. Nelson, 446 Pa.Super. 240, 253-54, 666 A.2d 714, 720 (1995) (“Instantly, the appellant’s sentence falls within the statutory limits. Because the claims asserted by appellant do not raise a substantial question, further review of the discretionary aspects of sentencing is not warranted.”).

We also reject appellant’s claim that the trial court improperly failed to consider that he had no criminal record, a job offer at the time of sentencing and a nine-year old daughter. Evidence of these mitigating circumstances was before the judge at sentencing, and an allegation that the judge failed to consider it is essentially a claim that the judge failed to give that evidence the weight appellant thinks proper. Such a claim does not raise a substantial sentencing question. Commonwealth v. Osteen, 381 Pa.Super. 120, 128, 552 A.2d 1124, 1128 (1989).

Finally, we consider appellant’s claim that the court, in imposing sentence, improperly relied upon its belief that appellant had lied to the jury. We note at the outset that appellant provides no authority supporting his contention that a sentencing court’s consideration of false trial testimony is improper as a matter of law. Indeed, the United States Supreme Court has expressly held to the contrary. See United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 2616, 57 L.Ed.2d 582 (1978) (“A defendant’s truthfulness or mendacity while testifying on his own behalf, almost without exception, has been deemed probative of his attitude towards society and prospects for rehabilitation and hence relevant to sentencing.”). The Gray-son Court also rejected the precise argument raised by appellant herein, namely, that consideration of false trial testimony would “chill” the exercise of a defendant’s constitutional right to testify on his own behalf. According to the Court:

Grayson’s argument that judicial consideration of his conduct at trial impermissi-bly “chills” a defendant’s ... constitutional right to testify on his own behalf is without basis. The right guaranteed by law to a defendant is narrowly the right to testify truthfully in accordance with the oath— unless we are to say that the oath is mere ritual without meaning. This view of the right involved is confirmed by the unquestioned constitutionality of perjury statutes, which punish those who willfully give false testimony... .Assuming, arguendo, that the sentencing judge’s consideration of defendants’ untruthfulness in testifying has any chilling effect on a defendant’s decision to testify falsely, that effect is entirely permissible. There is no protected right to commit perjury.
Grayson’s further argument that the sentencing practice challenged here will inhibit exercise of the right to testify truthfully is entirely frivolous. That argument misapprehends the nature and scope of the practice we find permissible. 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 stand, determine— [282]

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Cite This Page — Counsel Stack

Bluebook (online)
690 A.2d 279, 456 Pa. Super. 260, 1997 Pa. Super. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bowersox-pasuperct-1997.