Com. v. Devers

• Citation: 519 Pa. 88,546 A.2d 12
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Joseph Francis DEVERS, Appellee.
• Decision Date: 27 July 1988
• Court: United States State Supreme Court of Pennsylvania

Page 12

546 A.2d 12

519 Pa. 88

COMMONWEALTH of Pennsylvania, Appellant, v. Joseph Francis DEVERS, Appellee.

Supreme Court of Pennsylvania.

Argued May 9, 1988.

Decided July 27, 1988.

Richard A. Lewis, Dist. Atty., Katherene E. Holtzinger, Yvonne A. Okonieski, Deputy Dist. Attys., William T. Tully, Harrisburg, for appellant.

Marilyn C. Zilli, James R. Rosato, Frederick W. Ulrich, Asst. Public Defenders, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

In this review, we are afforded an opportunity to clarify the meaning of our landmark decision, Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and in so doing to clear away the tangled growth of legal misunderstandings which have sprung up around this case. That case firmly established the requirement that a sentencing court must disclose on the record the reasons for the imposition of a particular sentence. We are compelled now to put to rest misconceptions and borderline distinctions which have appeared in our legal literature on the specific issue of the sufficiency of the recorded statement required for sentencing.

The Appellee, Joseph Francis Devers, was involved in a drug related murder and robbery which occurred on May 13, 1983. The victim, Charles Chiloro, Jr. ("Chiloro"), was selling drugs, cocaine and marijuana, at his parents' home in Harrisburg. At the time of the killing, Chiloro's parents were in Florida, but returning soon. Devers went to the house to purchase some cocaine. Thereafter, Chiloro's body was found by his girlfriend. The cause of death was strangulation resulting from an electrical cord as well as the loss of blood. There was a stab wound in Chiloro's back and multiple slash and stab wounds around his body. There was blood all over the house. Drug paraphernalia and marijuana were left in the home, but cocaine and some $11,075 in cash were taken.

Prior to Devers' jury trial, he pled guilty to third degree murder and robbery, and there was no agreement about sentencing. On February 22, 1985, the trial court sentenced Appellee to ten (10) to twenty (20) years for third degree murder and five (5) to ten (10) years for robbery. Appellee complains that the sentencing judge erred by failing to explain in depth why he did not give greater consideration to mitigating circumstances on his behalf. Appellee relies upon Riggins to support his complaint.

At the outset it must be noted that the efficacy of the verdicts is not questioned by the Appellee. Only the sentencing procedure has been placed at issue.

Prior to Riggins, our common law on the subject of sentencing implied the need for some degree of recorded explanation. ¹ Over a half century ago, in Commonwealth v. Garramone, 307 Pa. 507, 161 A. 733 (1932), we created the need in a death case for the court to "file a brief memorandum which will reveal the reasons for the sentence imposed." The principle of having a record was reaffirmed in subsequent cases. Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973); Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1959); Commonwealth v. Hawk, 328 Pa. 417, 196 A. 5 (1938); and Commonwealth v. Irelan, 341 Pa. 43, 17 A. 897 (1941). In Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), a non-capital drug case decided one year before Riggins, we found grounds for remand where three judges had agreed on a sentence beforehand, had not requested a pre-sentence report, and had failed to take into account the enumerated balancing factors enunciated in the newly-enacted Sentencing Code, §§ 1321-26. ² These holdings were derived from two general principles in our jurisprudence: individualized discretionary sentencing and, in Martin, the avoidance of excessive punishment.

Under the 1974 Sentencing Code, a defendant could be sentenced alternatively to probation (§ 1322), guilt without further penalty (§ 1323), partial confinement (§ 1324), total confinement (§ 1325), or a fine (§ 1326). Each section included a list of enumerated factors to be "accorded weight" in the selection of that sentence. When these sections were replaced in 1980 by 42 Pa.C.S.A. § 9721(a), which restated the five sentencing alternatives, and § 9721(b), which did away with the enumerated factors in favor of a scoring system, language was retained which still requires a statement on the record of the reasons for the sentence.

The philosophy of indeterminate or individualized sentencing was explicitly recognized by the Pennsylvania Legislature early in this century. ³ Courts are not permitted to mete out punishment based on the mere fact of the crime. On the contrary, sentencing must result both from a consideration of the nature and circumstances of the crime as well as the character of the defendant. The sentencer has broad discretion to choose a penalty from sentencing alternatives and the range of permissible confinements, provided the choices are consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Discretionary sentencing, in sum, means that a defendant cannot be punished on the basis of the crime alone.

The central problem, of course, remains the definition of standards by which to determine whether a court has followed the process of weighing these factors. In the pre-Riggins line of cases above, it was not the practice to order pre-sentence reports, and on review, appellate courts then gleaned the entire record for evidence that the weighing process had taken place. In Martin, Mr. Justice Roberts (later Chief Justice) wrote for the majority that pre-sentence reports are of enormous value in providing the court with relevant defense information for consideration in sentencing, and called for changes to amend our rules: "We are therefore requesting that the Criminal Procedural Rules Committee prepare a recommendation for the Court amending Rule 1403 to require that, whenever a sentencing court fails to order a pre-sentence report in any of these situations, it shall place in the record its reasons for dispensing with such report." Id., 466 Pa. at 135, 351 A.2d 650. We note at this point that the present Pa.R.Crim.P. 1403 continues to provide that:

Rule 1403. Aids in Imposing Sentence

A. Pre-sentence Investigation Report.

(1) The sentencing judge may, in his discretion, order a pre-sentence investigation report in any case.

(2) The sentencing judge shall place on the record his reasons for dispensing with the pre-sentence investigation report if the court fails to order a pre-sentence report in any of the following instances:

(a) where incarceration for one year or more is a possible disposition under the applicable sentencing statutes; or

(b) where the defendant is less than twenty-one years old at the time of conviction or entry of a plea of guilty; or

(c) where a defendant is a first offender in that he has not heretofore been sentenced as an adult.

(3) The pre-sentence investigation report shall include information regarding the circumstances of the offense and the character of the defendant sufficient to assist the court in determining sentence.

B. Psychiatric or Diagnostic Examination.

After a finding of guilt and before the imposition of sentence, and after notice to counsel for both parties, the sentencing judge may order the defendant to

(a) submit to psychiatric observation and examination, and for this purpose the defendant may be remanded to any available clinic, hospital or institution for a period not exceeding sixty (60) days, or

(b) submit to diagnostic observation and examination, and for this purpose the defendant may be committed to a state correctional diagnostic and classification center for a period not exceeding sixty (60) days. The report of such examination may be considered the equivalent of a pre-sentence investigation report.

In this fashion, under Martin, sentencing courts must inquire whether the sentence imposed was considered within the context of the defendant's character:

At least two factors are crucial to such determination--the particular circumstances of the offense and the character of the defendant. Pa.R.Crim.P. 1403(a)(2) provides that all pre-sentence reports shall include such information. We hold that regardless of whether a pre-sentence report is ordered, the sentencing court must at least consider these two factors in its sentencing determination. Failure to give such individualized consideration requires that these sentences be vacated.

Obviously, the extent and the contents of a pre-sentence inquiry will vary depending on the particular case. A more extensive and careful investigation is clearly called for in felony convictions, particularly where long terms of confinement are contemplated. Id., 466 Pa. at 133 .

In deciding upon a sentence, therefore, judges must possess sufficient and accurate information in order to formulate their judgment.

Where Martin determined that a court must consider these factors, Riggins took the next step of requiring that the rationale employed by the sentencer must appear on the record. ⁴ Writing for the majority, Mr. Justice Roberts grounded the new requirement on Pa.R.A.P. 1925:

Rule 1925. Opinion in Support of Order

(a) General rule. Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.

In addition, as already noted, the new Code enumerated specific factors to be used as "guidelines for the articulation of reasons for its sentencing decision. Absent a statement of reasons, the record will not reveal whether the legislatively mandated factors have been...