Com. v. Fries

• Decision Date: 23 April 1987
• Citation: 523 A.2d 1134,362 Pa.Super. 163
• Parties: COMMONWEALTH of Pennsylvania v. James Donald FRIES, Appellant. 326 HARRISBURG 1985
• Court: Pennsylvania Superior Court

Page 1134

523 A.2d 1134

362 Pa.Super. 163

COMMONWEALTH of Pennsylvania v. James Donald FRIES, Appellant.

326 HARRISBURG 1985

Superior Court of Pennsylvania.

Argued Oct. 1, 1986.

Filed Feb. 9, 1987.

Reargument Denied April 23, 1987.

Susan E. Hartley, Athens, for appellant.

Daniel J. Barrett, Athens, for appellee.

Before WICKERSHAM, ROWLEY and TAMILIA, JJ.

TAMILIA, Judge:

This is an appeal from judgment of sentence entered after a jury convicted appellant of various offenses including kidnapping, rape, involuntary deviate sexual intercourse, simple assault, theft and burglary. These charges arose from an incident wherein appellant kidnapped a minor female and held her captive in the woods for three days, forcing her to undergo repeated sexual assaults.

Appellant raises seventeen (17) issues for our review. After a thorough review of the record, the parties' briefs, the lower court opinion, and the relevant case law, we must conclude that the lower court was correct in its analysis and resolution of these issues and find that they are without merit. We will, however, address appellant's arguments dealing with sentencing as the lower court provided no basis upon which we are able to rely in resolving those issues.

Appellant was sentenced to a minimum of sixty-four (64) years and a maximum of one hundred and sixty-four (164) years imprisonment. Individually the sentences were as follows: three (3) counts of rape--eight (8) to twenty (20) years, each to run consecutively; one (1) count of kidnapping--six (6) to twenty (20) years, to run consecutively; four (4) counts of involuntary deviate sexual intercourse--eight (8) to twenty (20) years, each to run consecutively; one (1) count of terroristic threats--one (1) to two (2) years to run consecutively; and one (1) count of simple assault--one (1) to two (2) years to run consecutively. Three burglary sentences of four (4) to twenty (20) years were to run consecutively to each other but concurrent to the offenses against the person. Sentences on offenses involving a second victim were also set to run concurrent with the sentences imposed for offenses against the primary victim. In addition to the aforementioned sentences, appellant also received numerous concurrent sentences which are not at issue in the instant appeal.

Appellant now contends the lower court erred by: 1) relying upon impermissible considerations in formulating his sentence; 2) incorrectly applying the sentencing guidelines; 3) failing to state sufficient reasons for the sentence on the record; and 4) imposing a sentence that is manifestly excessive.

Generally, we note that sentencing is a matter within the sound discretion of the sentencing judge and a sentence will not be disturbed by an appellate court absent manifest abuse. A sentence must either exceed the statutory limits or be manifestly excessive to constitute an abuse of discretion. Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985). A sentencing judge's discretion must be accorded great weight as he is in the best position to weigh various factors such as the nature of the crime, the defendant's character, and the defendant's displays of remorse, defiance, or indifference. Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985).

Keeping these principles in mind, we now turn to appellant's assertion that the sentencing court relied upon impermissible considerations in formulating his sentence. Specifically, appellant takes issue with the sentencing court's statement that its reasons for imposing the sentence included appellant's "horrendous prior criminal record, including prior sexual offenses and offenses involving minors." (S.T., 4/22/85, p. 36). Appellant claims he has previously pled guilty to only one offense of corruption of minors and only one offense of rape; thus the use of the word "offense" in the plural form implied reliance by the court upon arrests which did not result in convictions, which is error. The court acknowledged and corrected this misstatement, however, when it noted during appellant's argument on his motion to modify sentence that while appellant had been arrested on other counts of rape and involuntary deviate sexual intercourse, those charges had been dismissed by the Commonwealth. (S.T. 5/17/85, p. 13).

While it is true that imposition of a criminal sentence based upon misinformation contravenes due process of law, Commonwealth v. Puchalski, 310 Pa.Super. 199, 456 A.2d 569 (1983), in the case sub judice, the sentencing judge noted his own misstatement and subsequently corrected himself. Furthermore, it is not improper for a court to consider a defendant's prior arrests which did not result in conviction, as long as the court recognizes the defendant has not been convicted of the charges. Commonwealth v. Johnson, 333 Pa.Super. 42, 481 A.2d 1212 (1984).

Appellant further contends the court incorrectly calculated his prior record score pursuant to the sentencing guidelines. The lower court calculated appellant's prior record score as a six (6) based upon appellant's prior convictions of fifteen counts of burglary, one count of rape, one count of theft and one count of corruption of minors. Appellant argues that his prior record score is a three (3) because at the sentencing proceedings for his prior crimes, the court treated the crimes as a "spree" and sentenced accordingly.

42 Pa.C.S.A. § 9721, 204 Pa. Code § 303.7(c) provides:

Prior multiple convictions and adjudications of delinquency for offenses arising out of the same criminal transaction for which concurrent or consecutive sentences were imposed are scored as a single conviction equal to the statutory classification of the most serious conviction offense. Prior multiple convictions and adjudications of delinquency arising out of separate criminal transactions are scored as separate convictions, and each is computed in the prior record score.

Appellant claims that his prior convictions arose out of one transaction and thus, only the most serious conviction, the rape, is counted, which would constitute a prior record score of three (3).

The Pennsylvania Commission on Sentencing has stated, in reference to § 303.7(c), that:

[a] "transaction" is a crime or crimes which were committed by a defendant at a single time or in temporally continuous actions that are part of the same episode, event, or incident, or which are conspiracy and the object offense. "Spree" crimes are not part of the same transaction unless they occurred as continuous actions not separated in time by law abiding behavior.

Pa.C.Sent.2d (September 1, 1986) p. 58.

The lower court recognized this distinction as evidenced by its comments during sentencing, wherein the court stated;

First with respect to the prior convictions and the argument that those convictions should be treated as one criminal transaction, giving the Defendant a prior record score of three instead of six. The court would disagree. The record reflects that those offenses were committed over a two week period and to call them a crime spree is not to say they were a single criminal transaction. To the extent that the then Assistant District Attorney and Presiding Judge suggested that they were a single criminal transaction, this court would specifically reject that rationale. Each of those offenses was a separate criminal offense and the commission of one did not necessarily involve the commission of the other. The Defendant could have, at any time, discontinued the crime spree. Therefore, the court concludes that the defendant does, indeed, have a prior record score of six, the maximum allowable under law. (Emphasis added)

(S.T., 4/22/85, pp. 25, 26)

We find the lower court's conclusion to be correct and accordingly, find appellant's prior record score to be a six.

Appellant next contends that his offenses in the instant action arose out of the same transaction and thus the trial court should have used his prior record score only once, for the rape, and calculated the remaining sentences with a prior record score of zero. Appellant cites to 42 Pa.C.S.A. § 9721, 204 Pa. Code § 303.6 for the proposition that all of his crimes in the case sub judice should be considered as "one transaction" for sentencing purposes due to the geographical proximity of the crimes, the identities of the victims, and the three-day time frame of his actions. Section 303.6 provides:

§ 303.6. Consecutive sentences.

(a) When imposing sentences for convictions arising out of the same transaction, the prior record score is computed for the offense with the highest offense gravity score in such transaction. For the remaining offenses in such transaction, the prior record score shall be zero.

(b) When imposing sentences for convictions arising out of separate transactions, the prior record score shall be computed independently for each conviction.

The lower court, in addressing appellant's contention, stated:

The Court would next address the suggestion that all of these offenses for which the defendant is about to be sentenced are one criminal transaction. The Court is aware of cases using the terminology which Defense counsel has used, however, the ultimate test in determining whether or not an offense merges such that it is one offense for purposes of sentencing is whether or not the offenses necessarily involve ... the offense ... excuse me, the commission of one offense necessarily involves the commission of the other offense. There are some cases, some crimes here which merge and the Court would find that except for those which it is about to indicate do merge, none of the offenses necessarily involve the commission of any of the other offenses for which the Defendant will be sentenced today.

(S.T. 4/22/85, p. 27).

We cannot agree with the court's analysis as he equates the doctrine of merger of offenses with that of "transaction" for sentencing purposes. The question of merger of offenses has not been...