Commonwealth v. Ward

534 A.2d 1095, 369 Pa. Super. 94, 1987 Pa. Super. LEXIS 9659
CourtSuperior Court of Pennsylvania
DecidedDecember 11, 1987
DocketNo. 580
StatusPublished
Cited by4 cases

This text of 534 A.2d 1095 (Commonwealth v. Ward) 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. Ward, 534 A.2d 1095, 369 Pa. Super. 94, 1987 Pa. Super. LEXIS 9659 (Pa. Ct. App. 1987).

Opinions

WATKINS, Judge.

This case comes to us on appeal from the Court of Common Pleas of Adams County and involves defendant-appellant’s appeal from the sentences imposed upon him as the result of convictions for robbery and burglary.

The incident from which the conviction arose occurred on December 21, 1983 when the victim returned to her home and discovered that it had been ransacked. Upon entry to the premises, she was pulled aside by the appellant’s accomplice and directed to the dining room where she was asked for money. The accomplice then pulled her purse from her shoulder and directed her to the second floor where she observed the appellant. The accomplice then pulled the telephone receptacle from the wall and ordered the victim under her bed.

Sometime later, the victim, believing the intruders had departed, exited the bedroom where she confronted the accomplice who pointed a gun at her, ordered her back to the bedroom where she was instructed to remove her clothing and to get back under the bed. The intruders left shortly thereafter.

[96]*96The defendant was convicted by a jury of various counts of burglary and robbery, theft by unlawful taking and criminal conspiracy. On November 9, 1984, the appellant was sentenced to two and one-half to twelve and one-half (2 & V2 to 12 & V2) years on the burglary conviction and two and one-half to fifteen (2 & V2 to 15) years on the robbery conviction. The sentencing court provided that the robbery sentence should commence at the expiration of the minimum sentence imposed for the burglary conviction which rendered the sentence partially consecutive and partially concurrent.

Appellant appealed the robbery sentence to the Superior Court. This Court found that the robbery sentence exceeded the statutory maximum sentence and remanded the case to the sentencing court for a correction of the sentence and for a statement of rationale for the sentence. See Commonwealth v. Ward, 352 Pa.Superior Ct. 620, 505 A.2d 1037 (1985). On December 13, 1985, the sentencing court resentenced the appellant on the robbery conviction imposing a sentence of two and one-half to ten (2 & V2 to 10) years. The order provided that the effective date of the robbery sentence would be the expiration of the minimum sentence imposed on the burglary conviction that is at the end of two and one-half years. The court further ordered that the effect of the sentence for both offenses was to impose an imprisonment term of not less than five (5) years nor more than twelve and one-half (12 & V2) years. Thus, the sentence was made partially consecutive and partially concurrent.

Shortly before the Superior Court remanded the robbery sentence, appellant filed a P.C.H.A. petition in which he alleged, inter alia, that the sentence was illegal. After the re-sentencing on the robbery conviction, the appellant filed a Motion to Modify Sentence alleging that the sentencing court abused its discretion by imposing a sentence in excess of sentencing guidelines for the robbery and by imposing consecutive minimum terms for the burglary and robbery.

[97]*97The proceedings on the P.C.H.A. Petition and Motion to Modify Sentence were consolidated for hearing.

Appellant raises three issues in this appeal:

1. Did the Sentencing Court abuse its discretion by imposing a sentence in excess of the Sentencing Guidelines?
2. Did the Sentencing Court abuse its discretion by imposing consecutive minimum sentences for burglary and robbery?
3. Can the Sentencing Court impose a partially concurrent and partially consecutive sentence under Section 9757 of the Sentencing Code (42 Pa.C.S.A. 9757)?

Appellant’s first and second arguments are without merit.1 The sentence of two and one-half to ten years for the robbery conviction to be served consecutively with the sentence on the burglary conviction is proper under the circumstances of this case. Where no statutorily mandated sentence is implicated, trial judges in the Commonwealth are vested with broad discretion in sentencing and will not be reversed on appeal unless there is a clear abuse of discretion. Commonwealth v. Rooney, 296 Pa.Superior Ct. 288, 292, 442 A.2d 773, 774 (1982); Commonwealth v. Hollerbush, 298 Pa.Superior Ct. 397, 444 A.2d 1235 (1982). The facts in the instant case reveal that the victim’s home was completely ransacked, that she was directed to lay underneath the bed while the assailants continued to rummage through her home and that she was again confronted by the assailants and threatened with a rifle. She was then told to undress and instructed to remain in the bedroom, under the bed, until they departed. At sentencing, it was also revealed that the appellant was on probation at the time he committed the instant crimes. During the sentencing colloquy, the sentencing court stated that he considered [98]*98the indignities perpetrated upon this female victim by the culprits as an aggravating circumstance which justified a sentence in excess of the sentencing guidelines. He also considered the fact that the appellant was on probation at the time of the offenses when he imposed sentence. Appellant attempts to argue that the court should have considered the fact that the perpetrators did not molest the female victim. Of course, this is reflected by the fact that they were not charged or convicted with any such offenses. The fact that the appellant did not participate in other crimes does not mitigate the above facts. Under these circumstances, we cannot find that the sentencing court abused its discretion in imposing the sentence that it did.

Appellant’s third contention has merit. We agree with appellant’s contention that a sentence which is partially consecutive and partially concurrent is not a valid sentence. While at first glance it might appear that a consecutive minimum sentence and a concurrent maximum sentence has no practical effect, we must point out that the minimum and maximum sentences may determine a convict’s place of incarceration, his parole eligibility and the jurisdiction to grant parole. Further, Pa.R.Crim.Pro. 1406(b) adopted July 23, 1973, and effective ninety (90) days thereafter, provided as follows:

(b) Whenever two or more sentences are imposed on a defendant to run consecutively, there shall be deemed to be imposed on such defendant, unless otherwise stated by the judge, a sentence the minimum of which shall be the total of the minimum limits of the several sentences so imposed, and the maximum of which shall be the total of the maximum limits of such sentence.

This provisions would appear to grant the sentencing court the discretion to impose partially concurrent-partially consecutive sentences. Simultaneous to the adoption of this rule came the enactment of R.Crim.Proc. 1415(c), which suspended the Act of 1937, 19 Pa.C.S.A. 897, as inconsistent with Pa.R.Crim.Pro. 1406(b). However, 18 Pa.C.S.A. 1357, now found at 42 Pa.C.S.A. 9757, was enacted on December [99]*9930, 1974, and became effective on March 31, 1975. Said statute provided that:

§ 1357. Consecutive sentence of total confinement for multiple offenses.

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Related

State v. Riggs
799 S.E.2d 770 (Supreme Court of Georgia, 2017)
Commonwealth v. McNabb
819 A.2d 54 (Superior Court of Pennsylvania, 2003)
Commonwealth v. Ward
568 A.2d 1242 (Supreme Court of Pennsylvania, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
534 A.2d 1095, 369 Pa. Super. 94, 1987 Pa. Super. LEXIS 9659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ward-pasuperct-1987.