Commonwealth v. Button

481 A.2d 342, 332 Pa. Super. 239, 1984 Pa. Super. LEXIS 5618

• Court: Supreme Court of Pennsylvania
• Decided: August 3, 1984
• Docket: 2302; 2450; 2451
• Status: Published

Opinions

TAMILIA, Judge:

This consolidated appeal arises out of one incident involving two defendants and a double homicide. Appellants, James Michael Button and Roger Button, entered pleas of guilty to two counts each of murder generally. The degree of guilt was set by the court at first degree in both instances and each appellant was sentenced to two consecutive life terms. Sentences on appellants’ pleas of guilty to robbery and conspiracy charges were suspended pending the outcome of the appeals on the homicide convictions. Appellants now challenge all aspects of the ordered disposition and in so doing raise two issues of first impression in this Commonwealth.

On the evening of February 11, 1982 appellants perpetrated the bludgeoning deaths of Ross Cummings and Robert Southard, both disabled, and aged 74 and 59 respectively. The main purpose of the act was to obtain money, but the deaths of the victims were anticipated and in fact planned to prevent identification, as evidenced by Roger Button’s prior statement of intent made to an acquaintance. Appellants had in the past performed day labor for the victims, knew their habits and lay in wait for them to arrive at the barn where they were to be killed.

Appellants’ initial attack upon the sentences imposed is mounted against the extent to which the court may interpret sentencing law in fashioning an appropriate penalty.

Abuse of discretion in sentencing is defined in terms of either a manifestly excessive sentence or one which exceeds the prescribed statutory limit. Commonwealth v. Owens, 315 Pa.Super. 400, 462 A.2d 255 (1983). Appellants contend that in both of these respects their consecutive life sentences constitute abuse of discretion. Specifically it is alleged that because 42 Pa.C.S.A. § 9711, which governs procedure in cases of first degree murder, does not expressly provide for the imposition of consecutive life terms, such sentences are illegal. However, 42 Pa.C.S.A. § 9757 does address the issue of consecutive sentences for multiple offenses. The question then becomes one of statutory interpretation and is governed by the Pennsylvania Statutory Construction Act, 1 Pa.C.S.A. § 1501 et seq.

Section 1932 of the Act speaks directly to the point at issue:

(a) Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things, (b) Statutes in pari materia shall be construed together, if possible, as one statute.

It does not require a quantum leap in logic to find that § 9711 and § 9757 of the Sentencing Act are in pari materia, and we do so find. See generally Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983); Commonwealth v. Johnson, 368 Pa. 139, 81 A.2d 569 (1951).

This result finds an analogue in cases where a (mandatory) consecutive life sentence is imposed upon a person already serving a life term who is convicted of assault by a life prisoner, Commonwealth v. Bryant, 239 Pa.Super. 43, 361 A.2d 350 (1976), or where definite terms consecutive to a life sentence are imposed for offenses other than murder, Commonwealth v. Burgess, 500 Pa. 224, 455 A.2d 631 (1983) (possession of an instrument of crime); Commonwealth v. Boyd, 271 Pa.Super. 88, 412 A.2d 588 (1979) (prohibited offensive weapons, criminal conspiracy and robbery); Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982) (burglary). If, as appellants assert, consecutive life sentences are not implicated much less mandated by the sentencing statute, then the discretion of the trial court is necessarily the controlling factor. See Commonwealth v. Burtner, 307 Pa.Super. 230, 453 A.2d 10 (1982).

We may derive some guidance too from the fact that in at least seven other jurisdictions ¹ consecutive life sentences have been imposed without challenge, and that in two other jurisdictions such sentences have withstood constitutional attack. Crawford v. State, 236 Ga. 491, 224 S.E.2d 365 (1976); Chavigny v. State, 163 So.2d 47 (1964) Fla.App.

Further, despite the obvious limitations dictated by human mortality, there is no statutory provision restricting the length of possible sentences. As the ABA Standards Relating to Sentencing Alternatives and Procedures (Approved Draft 1968) observes:

It is very rare for there to be a legislative ceiling on the sentences which may be piled on top of each other. It is the rule rather than the exception that there is literally no limit to the term which can be imposed on the multiple offender. Id. at 174.

In short, the uniqueness of the statutory homicide provisions, which in appellants’ view limits the flexibility of the court in pronouncing sentence, refers only to the type of penalty deemed appropriate by the legislature. Beyond this the court’s discretion is subject to no limitation other than that inherent in the term “manifestly excessive” which is inapplicable here. In fact,

where the statute provides that the punishment for murder may be death, life imprisonment or imprisonment for a term not less than a specified number of years, a sentence for a definite term may be fixed without reference to the expectancy of life of the accused, and may be for a period not only in excess of his life expectancy but even beyond the extent of the human span of life; and this is true not withstanding the sentence has the affect of depriving the accused of the benefits of laws relative to probation and parole and not withstanding the objection that it cannot be served within the accused’s life time. 41 C.J.S. Homicide § 433.

The actuarial tables of life expectancy have no application in the determination of a mandatory life sentence, as the ultimate crime, according to the legislative scheme, demands punishment stripped of all rehabilitative beneficence. The sentence, then, cannot be said to go beyond the bounds of legislative intent or judicial prerogative. Nor is it, as appellants further argue, excessive vis-a-vis the offenses for which, and the offenders on whom, it was imposed.

Appellants’ further argument that the court took insufficient notice of their disadvantaged backgrounds, ages, etc., in fashioning the penalties is somewhat facticious considering the available alternative. It is precisely because the court imposed life sentences rather than ordering the death penalty that due consideration of mitigating factors is quite adequately demonstrated by the trial court. Having found first degree murder to have been committed² not once but twice, the trial judge was compelled to sentence on each conviction and to choose one of only two options. By indirect but pointed reference the trial judge indicated his familiarity with and adherence to the provisions of the statutes applicable in the case before him, and the evidence of individualization which led him to choose life over death as appropriate for appellants’ sentence. Commonwealth v. McCall, 320 Pa.Super. 473, 467 A.2d 631 (1983). Had the homicides occurred under different circumstances, e.g. with some intervening temporal hiatus, or had appellants been tried separately, the objection to the cumulative nature of the sentences would not now be at issue. We cannot hold that an approximation of temporal simultaneity vitiates the fact that murders are separately punishable regardless of the context in which they occurred. Two violations of the homicide statute occurred and although there has in fact been no express allegation that homicides somehow merge, the implication of appellants’ argument as to the excessive nature of the sentence leads inexorably to the conclusion that this is indeed the crux of their claim. Since, as has been shown above, sentences for offenses other than murder may without violation of either law or principle be pronounced consecutive to a life term, to deny to the court this disposition in murder cases would serve no purpose but to encourage the commission of successive homicidal acts.

Appellants claim too that the sentence is unenforcible because indefinite, vague, and therefore constitutionally unsound. This exception seems to be based on the language in which the sentencing order is couched, to wit, “the minimum sentence to be served for the total of all offenses with respect to this sentence to be for and during the term of the natural life of the defendant.”³ The Opinion of the trial court in its reference to some difficulty in the interpretation of the Order⁴ is used to buttress appellants’ position. However, a life sentence is precisely that, for life, and the difficulty in predicting duration has always been, and will no doubt continue to be, a question central to the human condition. Life sentences, whether imposed singly or in multiples, have no minimum, so that the impact of this part of the order is solely in reference to appellants’ possible future release. Once sentence is pronounced, the length of the sentence effectively passes from the ambit of judicial consideration to that of the executive department, regardless of the wording of the sentence order. Parole, or more properly commutation, is neither a right of the prisoner nor a prerogative of the court, but is a matter within the administrative purview of the Board of Parole. Commonwealth v. Gooslin, 280 Pa.Super. 384, 421 A.2d 775 (1980). In this respect consecutive life sentences have the objective effect of providing the Board with the results of multiple convictions in computing a prisoner’s eligibility for release, and operate subjectively to express the court’s conclusion as to the severity of penalty merited. The sole inhibiting power they would have on the Board, would be to prevent it from construing the sentences to be concurrent. From this point on decisions made ex cathedra by the Board are unaffected by the court’s intentions.

For the foregoing reasons we hold the imposition of these consecutive life sentences to be compatible with the intent of the legislature and within the sound discretion of the sentencing court.

Appellants next advance the proposition that the trial court’s suspension of sentence in the robbery and conspiracy charges was improper and that any subsequent imposition of sentence on these charges is barred by double jeopardy. The instant case presents the situation anticipated in dicta by this Court in Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981), in which the trial court suspends sentence on lesser charges pending appellate review of the sentence imposed for more serious offenses. The suspension acts, under these limited circumstances, in our view, as a procedural stay rather than a final disposition, which in any event was neither intended nor possible.⁵ Such a stay represents an attempt to reconcile the various policy considerations involved, since the trial court must “take into consideration that its judgment (on the more serious count) might be reversed on appeal” which an appellate court may do to preclude the possibility that dual judgments might disadvantage the defendants. Further, if the underlying conviction rather than the sentence only is dismissed on appeal, then the trial court’s reserved jurisdiction ensures that the defendant will not emerge unpenalized, and avoids imposing on the appellate court the unnecessary burden of remand. People v. Spaniel, 262 Cal. App.2d 878, 894 n. 3, 69 Cal.Rptr. 202, 212 n. 3 (1968). While the above cited case provides no absolute authority, being foreign and in fact based upon a statutory provision, its amplification of the issues involved is relevant here.

As appellants point out, however, the suspension also implicates constitutional issues in the form of both double jeopardy and due process, and, as the analogous case law demonstrates, the question of speedy trial rights as well.

The double jeopardy protection afforded by the fifth amendment is threefold. It protects against a second prosecution for the same offense after acquittal. Green v. United States, 355 U.S. 184 [78 S.Ct. 221, 2 L.Ed.2d 199] (1957). It protects against a second prosecution for the same offenses after conviction. In Re Nielsen, 131 U.S. 176 [9 S.Ct. 672, 33 L.Ed. 118] (1889). And it protects against multiple punishment for the same offense. United States v. Benz, 282 U.S. 304 [51 S.Ct. 113, 75 L.Ed. 354] (1931).

Commonwealth v. Henderson, 482 Pa. 359, 368, 393 A.2d 1146, 1151 (1978). Of these three concepts the first and third are clearly inapposite since appellants entered a guilty plea and there has been no persuasive argument advanced that robbery and homicide somehow comprise the same offense.⁶ The question which remains is whether judicial delay in sentencing constitutes double prosecution. We conclude that it does not. In his concurrence to Commonwealth v. Love, 295 Pa.Super. 276, 441 A.2d 1230 (1982) Judge Hoffman points out that,

One is placed in double jeopardy if he has received an acquittal or its equivalent, or a sentence which is no longer subject to attack. Until such legal sentence is imposed, the jeopardy in which he was placed, when first tried, must be deemed to continue until the time of imposition of legal sentence at the subsequent trial. ‘Until a convicted prisoner receives the sentence which can withstand attack, it may be conceived that his original jeopardy continues without interruption and that he is, therefore, not put in jeopardy a second time when he receives his first valid sentence^]’

Id,., 295 Pa.Superior Ct. at 286, 441 A.2d at 1235 (citations omitted). As there will be no subsequent trial of appellants, they will not be twice jeopardized.⁷ But see Commonwealth v. Fels, 286 Pa.Super. 232, 428 A.2d 657 (1981).

We next address the due process argument raised by appellant which bears within it the issues relating to speedy trial rights since the concerns with respect to procedural delay are the same. In Commonwealth v. Giovengo, 188 Pa.Super. 220, 146 A.2d 629 (1958) we held that a sentence may be suspended or deferred for a period of time equal to the maximum term for which the defendant might have been sentenced provided proper reasons are present to justify the delay. Id. Although admittedly this decision conforms to a statutory provision no longer in force, our Supreme Court has applied the same rationale in recognizing the harmlessness of pre-sentence delay in Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), holding that the constitutionality or otherwise of intervals between conviction and sentence depends upon circumstance. The court, assuming arguendo that speedy trial rights subsume the sentencing procedure stated:

The principle factors to be considered in determining whether a delay in sentencing has deprived a defendant of his right to a speedy trial, are length of delay, reason for the delay, assertion of the right, and resulting prejudice to interests protected by the right to a speedy trial.

Id., 490 Pa. at 627, 417 A.2d at 599. The interests referred to, prevention of oppressive pre-trial incarceration, minimization of an accused’s anxiety and concern, and limitation of the possibility that the defense will be impaired, Commonwealth v. Glover, 303 Pa.Super. 229, 449 A.2d 662 (1982), aff’d 500 Pa. 524, 458 A.2d 935 (1983), carry no particular weight in the context of the instant case. Since, like the appellant in Pounds, supra, appellants herein are subject to life imprisonment, neither pre-trial incarceration nor anxiety and concern are relevant. And since the basis for conviction is a guilty plea, the effect of delay on possible defenses is likewise immaterial. With respect to the other (cognate) aspects of due process, appellants without further elaboration as to the nature of the violation cite Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), as controlling and dispositive in that it requires that the delay be neither intentional nor oppressive. Appellants further contend that the appropriate remedy is dismissal of the charges. It is within this context that the circumstances of the delay and its possible ramifications must be examined. In Glover, supra, a 49-month delay, occasioned by no fault of the appellant’s, was found not to be violative of the appellant’s rights because during that period he was free on bail. Here, where a life sentence is the maximum against which the postponement is measured, delay during the pendency of the appeal is hardly oppressive. With respect to the requirement that the right to a speedy sentence be asserted, although objection to the suspension was made on appeal, appellants’ Motions to Modify Sentence contain no such exception.⁸

Suspension of sentence has its roots in the common law as a procedure in the nature of a reprieve allowing the prisoner to seek pardon.⁹ We find that analogy to the instant appeal too compelling under the narrow circumstances of this case for dismissal of charges to be warranted. In fact suspension pending appeal does find some precedential authority in other jurisdictions.¹⁰ In this Commonwealth there is “at this time no definitive rule limiting the length of time which may elapse between an adjudication or plea of guilty and the sentencing of the defendant.” ¹¹ Pa.R.Crim.P. 1405 permits delay until post trial motions, presentence psychiatric and diagnostic reports have been submitted to the court and examined by counsel, but no specific directive that sentence be imposed immediately thereafter now exists.

Although we do not applaud the trial court’s novel method of assuring that appellants will not go unpunished, we similarly do not feel that the intentional nature of the delay warrants dismissal of the charges in view of its negligible adverse affect upon appellant life prisoners. We therefore remand to the trial court for immediate sentencing on the robbery and conspiracy charges.

We affirm the judgment of sentence to consecutive life sentences and remand the proceedings to the trial court for sentencing on the robbery and conspiracy charges as to each appellant.

Jurisdiction is relinquished.

SPAETH, President Judge, files a concurring opinion.

1 . Arkansas:

Graham v. State, 254 Ark. 741, 495 S.W.2d 864 (1973).

Missouri:

Wright v. State, Mo.App., 614 S.W.2d 325 (1981).

New Jersey:

State v. Carter, 85 N.J. 300, 426 A.2d 501 (1981).

New Mexico:

State v. Martinez, 92 N.M. 256, 586 P.2d 1085 (1978).

North Carolina:

State v. Nelson, 298 N.C. 573, 260 S.E.2d 629 (1979); State v.

Williams, 295 N.C. 655, 249 S.E.2d 709 (1978).

Ohio:

State v. Gregory, 8 Ohio App.3d 184, 456 N.E.2d 839 (1982).

Washington:

State v. Smith, 34 Wash.App. 405, 661 P.2d 1001 (1983).

2 . Appellants do not dispute the findings of the court as to degree of guilt.

3 . Orders of July 20, 1982.

4 . Slip Opinion at 11.

5 . 42 Pa.C.S.A. § 9721 lists as sentencing alternatives: (1) an order of probation, (2) a determination of guilt without further penalty, (3) partial confinement, (4) total confinement, (5) a fine. See also Commonwealth v. Balles, 163 Pa.Super. 467, 62 A.2d 91 (1948).

6 . Appellants reliance on Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981) in support of the merger of the robbery into the homicide is misplaced. In that case, our Supreme Court citing Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941) found that aggravated assault would merge with criminal attempt to commit robbery because the latter necessarily involved the former as successive steps in one crime. Such is not the case here under scrutiny. See Maddox, supra; Commonwealth v. McGavin, 305 Pa.Super. 528, 531 n. 4, 451 A.2d 773, 775 n. 4 (1982).

7 . We concede that the sentencing element of the bifurcated proceeding required in capital cases may in some contexts be viewed as a trial in and of itself. Here, the offenses at issue are robbery and conspiracy.

8 . Under ordinary circumstances issues not raised in the lower court are waived and may not be raised for the first time on appeal. Pa.R.App.P. 302. Questions concerning the legality of sentence imposed form a notable exception to the rule, however. Commonwealth v. Wilson, 312 Pa.Super. 77, 458 A.2d 244 (1983). Even were this not the case, the unusual nature of the sentence at issue would dictate our examination of its propriety.

9 . Sol Rubin, Law of Criminal Correction 1983.

10 . State v. Motley, 546 S.W.2d 435 (1976) Mo.App.; Donaldson v. State, 93 Wis.2d 306, 286 N.W.2d 817 (1980).

11 . Burton R. Laub, Pennsylvania Manual of Civil and Criminal Penalties and Sentences, 44-45 (1982 Revision).