Commonwealth v. Jones

613 A.2d 587, 418 Pa. Super. 93, 1992 Pa. Super. LEXIS 2615
Superior Court of Pennsylvania·Decided August 19, 1992·No. 1433; 2647·Published·Cited by 95 cases

Opinions

MONTEMURO, Judge:

This appeal from the judgment of sentence of the Court of Common Pleas of Lehigh County, comes before an en banc panel of this Court after a hearing on remand. We affirm.

[97] On October 11, 1985, appellant entered pleas of guilty to twenty-one counts of sexual abuse of children,1 twenty counts of obscene and other sexual materials,2 and twenty counts of involuntary deviate sexual intercourse.3 In exchange for the guilty pleas, the Commonwealth nol prossed eighty-four (84) other counts of alleged criminal activity. The guilty pleas arose from appellant’s homosexual involvement with fourteen (14) boys, ranging in age from four (4) to fifteen (15) years of age.

Appellant was initially sentenced, on May 13, 1986, to a term of consecutive and concurrent jail sentences totalling fifty to one hundred years. This sentence followed a sentencing hearing at which testimony was taken from the parents of some of the victims, the police officer who commenced the prosecution, and a psychiatrist whom appellant retained as an expert. The expert testified that appellant was suffering from pedophilia as a result of various events which had occurred during his childhood and adolescence. The expert also discussed the prospects for appellant’s rehabilitation. After the sentence was rendered, appellant filed a motion for reconsideration which was denied. Appellant then appealed the judgment of sentence to this court.

In a memorandum decision, a panel of this court held that the sentence imposed was manifestly excessive. Commonwealth v. Jones, 367 Pa.Super. 648, 528 A.2d 257 (1987). The panel found that the lower court did not take into adequate consideration “appellant’s background, his crime-free adult record, the relatively short time span during which the crimes occurred, his undisputed mental illness and expression of remorse, and the prospects of treatment of appellant’s illness.” Superior Court memorandum, at 3. This court also criticized the lower court for “totally ignoring]” evidence which suggested that appellant could return to society as a contributing member “in a reasonable period of time and under proper treatment.” Id. at 3-4.

[98] After the panel’s decision, the Commonwealth appealed the case to the Pennsylvania Supreme Court. Although the petition for allowance of appeal was granted, the supreme court ultimately quashed the appeal, holding that an appeal relating to the discretionary aspects of sentence “beyond the appellate court that has initial jurisdiction for such appeals,” is prohibited under the sentencing statute, 42 Pa.C.S.A § 9781(f). Commonwealth v. Jones, 523 Pa. 138, 565 A.2d 732 (1989). The supreme court also noted the following in regard to the remand order of the superior court:

It is to be noted that the concern expressed by the Superior Court in this matter was that the trial court may have focused “nearly exclusively” upon the need to punish for the harm caused to the victims, and that in doing so proper consideration was not given to the mental illness under which petitioner labored at the time of these incidents and the prospects of treatment which petitioner was receiving for the malady. Nothing in the order of the Superior Court would preclude the trial court from reinstituting the same sentence if indeed that court did weigh those factors in arriving at the sentence imposed. The order of the Superi- or Court should not be viewed as usurping the trial court’s exercise of discretion, but rather as attempting to assure that the trial judge properly weighed all of the relevant facts upon which the decision should have been made.

Id., 523 Pa. at 144, 565 A.2d at 732.

After the supreme court granted the motion to quash, the case was remanded to the lower court in accordance with the superior court panel decision. A sentencing hearing was held on August 13, 1990, and the lower court heard new evidence. After the hearing, the lower court reimposed the same sentence which had been imposed on May 13, 1986. Appellant then filed this timely appeal, in which he raises the following issues:

1. Whether the sentencing court failed to follow the directive of the Superior Court to reconsider the sentence and give adequate consideration to appellant’s background, his crime-free adult record, the relatively short time span dur[99] ing which the crimes occurred, his undisputed mental illness, his expression of remorse, and the prospects of treatment of appellant’s illness.
2. Whether the sentencing court failed to give proper reasons for its sentence and for ignoring the direction of the superior court to impose a lesser sentence.
3. Whether the sentencing court in its re-sentencing again totally ignored evidence which suggests that appellant, in a reasonable period of time and under proper treatment, may return to society as a contributing member.
4. Whether the sentencing court failed to give proper weight to appellant’s mental illness and the rehabilitative needs of the appellant and to the testimony at the re-sentencing hearing that treatment for appellant’s mental illness was not available in the state system until he was within one or two years of completing his minimum term.
5. Whether the sentence is manifestly excessive and comprises cruel and unusual punishment in that it comprises essentially a life sentence for the appellant.

On appeal, appellant challenges the discretionary aspects of his sentence and not its legality. In such a case, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal. Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Zelinski, 392 Pa.Super. 489, 573 A.2d 569 (1990), allocatur den., 527 Pa. 646, 593 A.2d 419 (1990); Commonwealth v. Stalnaker, 376 Pa.Super. 181, 545 A.2d 886 (1988). “Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.” 42 Pa.C.S.A. § 9781(b), referring to Chapter 97 (Sentencing). The determination of whether a particular issue constitutes a substantial question as to the appropriateness of sentence must be evaluated on a case-by-case basis; the court will be inclined to allow appeal where the appellant advances a colorable argument that the trial judge’s actions were inconsistent with a specific provision of the sentencing code or contrary to the fundamen[100] tal norms which underlie the sentencing process. Commonwealth v. Catanch, 398 Pa.Super. 466, 581 A.2d 226 (1990).

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Commonwealth v. Jones, 613 A.2d 587, 418 Pa. Super. 93, 1992 Pa. Super. LEXIS 2615 (Pa. Ct. App. 1992).

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