Commonwealth v. Zack

33 Pa. D. & C.3d 595, 1985 Pa. Dist. & Cnty. Dec. LEXIS 454
CourtPennsylvania Court of Common Pleas, Northumberland County
DecidedJanuary 4, 1985
Docketno. CR-84-125
StatusPublished

This text of 33 Pa. D. & C.3d 595 (Commonwealth v. Zack) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Northumberland County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Zack, 33 Pa. D. & C.3d 595, 1985 Pa. Dist. & Cnty. Dec. LEXIS 454 (Pa. Super. Ct. 1985).

Opinion

KREHEL, P.J.,

1(A): REASONING

At the opening of the pre-sentence hearing on November 9, 1984, attention was focused on looking at the totality of circumstances of this case. That meant not only the happenings of the accident with its consequences of death, injuries, and immediate impact on victims, the police investigators, and medical reports, but also the pre-sentence investigation report, testimony, and exhibits of the pre-sentence hearing, legal memoranda, and the media reports, letters to the court, as well as personal, and phone calls during the ten day period following the November 9, 1984 hearing.

This commentary prior to the imposition of sentence will consist of findings of fact, the applicable law, a discussion of the application of law to the facts, and the conclusion drawn from the discussion, in a broadened form of reasons of the sentence.

[597]*597The purpose of the pre-sentence hearing was to examine a judge’s power and authority to suspend a sentence mandated by the Pennsylvania General Assembly, and signed into law by the governor; more particularly, section 3735 of the January 14, 1983 Vehicle Code providing a new crime of homicide by vehicle while driving under the influence, a felony of the third degree, with a mandatory minimum term of imprisonment of three years, where one unintentionally causes the death of another as a direct result of a violation and conviction for violation of DUI. A plea of guilty to violation of section 3735, knowingly, voluntarily, and intelligently, is equivalent to conviction by a jury verdict.

1(B): CONSEQUENCES OF VIOLATIONS

Suspending a sentence is like a reprieve, and not a final sentence. For if I suspend the mandatory time of imprisonment, coupled with conditions in the nature of probation or trusting behavior, then the violation of any conditions will bring down the consequences of the final sentence: that is, the evaporation of the reprieve, and the clanging down of the slammer for the full three-year mandatory minimum term, without credit for street time. To do less, would mock the legislative enactment of fixing three years imprisonment, not one more, nor one less.

Finally, in making this difficult sentencing decision, I must be mindful of the direction of Canon 3A(1) of the Code of Judicial Conduct, which states:

“A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism.”

[598]*598Upon consideration of the aforegoing commentary of introduction, this court determines the following

II: FINDINGS OF FACT

1. Craig J. Zack, a white male, born September 1, 1965, resides at 1321 West Montgomery Street, Shamokin, Northumberland County, Pa., and entered a guilty plea on May 9, 1984, to six counts: (1) Homicide by Vehicle while DUI (F3); (2) DUI (M2); (3) Driving on the Right Side of Roadway (S); (4) Reckless Driving (S); (5) Involuntary Manslaughter (Mj); and (6) Underage Drinking (S).

2. The motor vehicle accident of January 20, 1984, on Burnside Road, Route 125, near Shamokin, Northumberland County, caused the death of defendant’s cousin, Jan R. Diorio, Jr., passenger in the vehicle operated by defendant, and injured Robert Kern, Jr., passenger in the other vehicle.

3. Coal Township Patrolman Henry Schrader, the investigating and prosecuting officer, filed the charges enumerated in Paragraph One, and recommended a sentence of less than six months imprisonment, plus other community service conditions, when interviewed by the country parole and probation department for its pre-sentence investigation report.

4. At the pre-sentencing hearing on November 9, 1984, the following persons appeared and offered statements and recommendations:

“(a) Attorney Charles Saylor, on behalf of Robert Kern, Jr. (walking with a cane and with a brace on his injured leg), stated that this young man’s life has been permanently affected and that substantial confinement is appropriate punishment, urged that [599]*599the Legislative mandate of three (3) years imprisonment be imposed;
(b) The Diorio Family’s statement, read to the Court by Attorney Guy Schlesinger, said that the mandatory Sentence is not appropriate, despite the death of their son, Jan, Jr., cousin of the Defendant, claiming that nothing can be done to bring back their Son, and that three years imprisonment for the Defendant would “cause another death”;
(c) Clinical psychologist, J. R. Shenk, stated that he performed an evaluation of the Defendant, reported that the youth has high intelligence, an engineering student at Penn State, is honest, emotionally stable, is an appropriate candidate and minimum risk for parole or probation, but depressed over the accident that killed his cousin, Jan Diorio, Jr., who was also his best friend;
(d) Mrs. Anita Shaffer, teacher and class advisor in Shamokin Area School District, testified in praiseworthy terms regarding the Defendant’s character, academic achievement, including Class of 1983 presidency, as well as personal and family reactions.
(e) Hope Emerick, representing MADD (Mothers Against Drunk Driving), stated that this case, although unique in this County, is another statistic nationally, whereas 45,000 persons are killed annually: “because of that the Pennsylvania Legislation provided a minimum sentence” (the three years imprisonment herein).
(f) Defense Counsel, Chief Public Defender Barry Feudale, under girds his statement with a research Memo, by stating that the Legislative intent on absolute adherence to mandatory sentences omitted any prohibition to suspending in this enactment, and that the Governor’s remarks at the time [600]*600of signing suggested judicial discretion on appropriate alternatives. He suggested a sentence of public service, such as talks to student groups on the problem of drinking, or in lieu of that, “a short incarceration,” pointing out the Defendant’s suffering and future suffering because he, too, lost a loved one in the accident.
(g) Attorney Vincent Rovito, Co-Defense Counsel, who personally lost his Mother and Sister as victims of a two-car drunk driving accident more than a decade ago, stated that the Defendant will “suffer for the rest of his life in a way that no jail or incarceration can equal.” Attorney Rovito added that he believes the Sentencing Judge has the power to suspend the mandatory three-year term and to impose an appropriate one.
(h) State Senator Edward W. Helfrick, one of the sponsors of this “drunk driving” legislation volunteered testimony of the Legislative’s intent “not to put every drunk driver in prison, but rather to get them off the roads.” He offered, further, that Legislative intent was to be ambiguous on prohibiting suspension on mandatory sentencing in this instance, allowing for Judicial discretion, and as noncommittal personally in the present case.
(i) Reference was made by the Sentencing Judge in his 1981 book, “Spiritual Fingerprint” at pages 78 and 79, wherein the 1959 alcohol problem was overcome by personal rehabilitative effort based in religious motivation, as an understanding of the impact of alcohol abuse on individual and family lives.

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Bluebook (online)
33 Pa. D. & C.3d 595, 1985 Pa. Dist. & Cnty. Dec. LEXIS 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-zack-pactcomplnorthu-1985.