Commonwealth v. Cottle

393 A.2d 1024, 260 Pa. Super. 85, 1978 Pa. Super. LEXIS 3954

• Court: Superior Court of Pennsylvania
• Decided: November 3, 1978
• Docket: 2191
• Status: Published

Opinions

VAN der VOORT, Judge:

Appeal is taken from judgment of sentence rendered following revocation of probation. The questions presented here are whether a sentencing judge should be obliged to place upon the record his explanation as to sentencing, or write an opinion thereon; whether the judge in this case abused his discretion in sentencing appellant to confinement when the probation department recommended to the contrary; and whether the sentence was excessive.

The subject of the trial court’s need to explain reasons for the sentence given has recently been much discussed. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), mandates that such reasons must be made part of the record. See also Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977) and Commonwealth v. Wertz, 252 Pa.Super. 584, 384 A.2d 933 (1978). This requirement has been met in this case by Judge BRAIG’S Opinion in which he stated his reasons for his sentence. Therein the sentencing judge pointed out that for four years, during which appellant had been arrested several times, he had not made himself available to probation officials. Consequently he was sentenced to confinement. The lower court opinion amply describes the facts which were the basis of the probation revocation and which gave rise to the sentencing. That opinion states as follows:

“On September 4, 1969 Ernest Cottle appeared before Judge Herbert Levin of the Philadelphia Court of Common Pleas and pled guilty to charges of Aggravated Robbery and Larceny of Motor Vehicle and Receiving Stolen Goods. On the Larceny and Receiving Stolen Goods charges, he was placed on five years probation to begin at the expiration of the sentence on the Robbery charge, the probationary period being from January 25, 1971 to January 25, 1976. During the probationary period, the defendant was arrested on charges of Burglary, Larceny, Receiving Stolen Goods and Violation of the Uniform Firearms Act. He failed to appear for three separate trials and hearings on these charges, and his whereabouts were unknown to anyone in the Courts or Probation Department from September 6, 1972 until his arrest on a Bench Warrant on March 13, 1976. The Bills of Indictments on the charges, which resulted in the three separate arrests during the probationary period, were either nolle prossed or dismissed in April of 1976.

“Defendant appeared before this Court (Judge Levin no longer being on the bench) for a Gagnon I hearing on June 2, 1976 and a Gagnon II hearing on June 22, 1976. At the Gagnon II hearing, this Court found that defendant had violated Judge Levin’s sentence of probation on the larceny and Receiving charges, revoked that probation and imposed a sentence of incarceration of 2% to 5 years on the defendant. Specifically, the violation upon which defendant’s probation was revoked was his failure to report to or cooperate with the Probation Department for approximately a four year period.”

Furthermore, the Opinion of the court below fully answers the other assignments of error. We find wholly without merit the allegations of abuse of discretion as to sentencing and the claimed excessiveness of the sentence. For appellant to have absented himself from the processes of criminal justice for four years, and to have been arrested and failed to appear in court numerous times during that period, are strong reasons justifying the sentence imposed.

Judgment of sentence affirmed.

SPAETH, J., files a dissenting opinion. WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case.