Commonwealth v. Velez

477 A.2d 879, 329 Pa. Super. 15, 1984 Pa. Super. LEXIS 5248

• Court: Supreme Court of Pennsylvania
• Decided: June 19, 1984
• Docket: 2609
• Status: Published

Opinions

CAVANAUGH, Judge:

This is an appeal from judgment of sentence. Appellant argues, on appeal, that the sentencing court erred in (1) not placing on the record the reasons for the disparity between appellant’s sentence and his co-defendants’ sentences, and (2) considering inaccurate facts and by not giving defendant’s individual circumstances adequate consideration. We agree that appellant’s first contention of error may have merit, and therefore remand for reconsideration of sentence, thus not reaching appellant’s second contention of error.

Appellant was sentenced on various criminal charges on September 7, 1983, by the Honorable Michael Franciosa. The sentences of appellant’s co-defendants ¹ as well as the identity of the sentencing judge of these co-defendants, do not appear on the sentencing hearing transcript. In addition, we cannot ascertain these facts from any part of the record on appeal. In the absence of these facts, we find that remand is appropriate, as the sentencing judge may have failed to state the reasons for disparity of sentence, if any, among co-defendants pursuant to Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983); Commonwealth v. Thurmond, 257 Pa.Super. 464, 390 A.2d 1330 (1978); and Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980).

The above cited cases hold that in order for a trial judge to impose different sentences on co-defendants, he must find differences between the co-defendants to justify the sentences. Commonwealth v. Sinwell, supra 311 Pa.Super. at 427, 457 A.2d at 960; Commonwealth v. McQuaid, supra 273 Pa.Super. at 611, 417 A.2d at 1216; Commonwealth v. Thurmond, supra 257 Pa.Super. at 467, 390 A.2d at 1331. The reason that one co-defendant receives a more severe sentence than another must be stated on the record. Commonwealth v. Sinwell, supra, Commonwealth v. McQuaid, supra.

In the instant case, not only are we unable to discern the identity of the co-defendants’ sentencing judge from the record, we are also unable to discern whether appellant did, in fact, receive a disparate sentence in relation to his co-defendants because the sentencing hearing transcript does not refer to the co-defendants’ sentences. The sole mention of appellant’s co-defendants, which is at all relevant to appellant’s contention herein, is in the guilty plea colloquy where Investigator Doyle, a Commonwealth witness, testified that the co-defendants had already been convicted or offered to plead. However, we cannot glean from the record, whether the co-defendants had actually been sentenced at the time appellant was sentenced. Without this information, it is not possible to ascertain whether the sentencing judge erred in sentencing appellant without discussing, on the record, the sentences of appellant’s co-defendants.

The dissent would have us go outside of the record below and call the prothonotary to ascertain the identity of the sentencing judges of appellant’s co-defendants. The rationale behind this proposal appears to be that these matters are recorded as business records of the court. The dissent at the same time recognizes that it is well established that an appellate court may not consider information outside the record on appeal. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). (An appellate court will not consider the statement of the trial judge that he instructed the jury on reasonable doubt where the transcript does not include instruction.) The record produced by the proceedings in the court below and general court records kept by clerical personnel are entirely different and the latter may not be utilized by an appellate court in adjudicating an appeal. The principle that an appellate court may not seek out evidence on its own is basic to our adversary system and should be absolute.

An appellate court may only review the decision of the lower court by taking into account matters that are of record. (“It is well established that an appellate court may not consider facts unless they are duly certified in the record.”); Commonwealth v. Walsh, 252 Pa.Super. 111, 113, 380 A.2d 1307, 1308 (1977); Commonwealth v. Jones, 478 Pa. 172, 180, 386 A.2d 495, 499 (1978) (“It is axiomatic that an appellate court may consider only matters that appear of record.”); Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Commonwealth v. Quinlan, 488 Pa. 255, 412 A.2d 494 (1980); Commonwealth v. Glover, 500 Pa. 524, n. 1, 458 A.2d 935, n. 1 (1983); Pittsburgh’s Airport Motel v. Airport Asphalt, 322 Pa.Super. 149, 469 A.2d 226 (1983); Commonwealth v. Roberson, 258 Pa.Super. 471, 393 A.2d 455 (1978); Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981); Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1983); Cf., Commonwealth v. Boettcher, 313 Pa.Super. 194, 459 A.2d 806 (1983); Commonwealth v. Nelson, 311 Pa.Super. 1, 456 A.2d 1383 (1983). In light of these cases, we do not believe the word “record” applies to court records not made as a matter of record during the proceedings which occur in the court below. That is, the records that employees of the judiciary keep as a matter of the day to day record keeping of court business are not meant to be included as records in the meaning espoused in the above cited cases.

We remand this case for reconsideration of sentence to determine whether appellant’s co-defendants were sentenced by the same judge, and if they were, whether the sentences were in fact disparate. Following proceedings below a new appeal may be taken. We do not retain jurisdiction.

CIRILLO, J., filed dissenting opinion.

1 . Appellant had five co-defendants. From the record, we can ascertain that two of these co-defendants are juveniles, and one co-defendant turned state's evidence. There is no additional information regarding the other two co-defendants.