Com. v. Losch
| Decision Date | 14 December 1987 |
| Citation | 369 Pa.Super. 192,535 A.2d 115 |
| Parties | COMMONWEALTH of Pennsylvania v. Eugene Altman LOSCH, Appellant. |
| Court | Pennsylvania Superior Court |
Daniel W. Stern, New Bloomfield, for appellant.
Gloria J. McPherson, Dist. Atty., Duncannon, for Com., appellee.
Before WIEAND, BECK and CERCONE, JJ.
This is an appeal by Eugene Altman Losch from a judgment of sentence entered on June 20, 1986 by the Court of Common Pleas of Perry County. The primary question presented is whether the court which resentenced appellant after his original judgment of sentence was vacated erred by refusing to consider appellant's good conduct while in prison. We find that under the circumstances of this case, the court's failure to consider evidence of good conduct was contrary to the mandate of the Sentencing Code. Accordingly, we must again vacate judgment of sentence and remand for resentencing.
I.
The procedural background of this case must be set forth in detail. Between 1979 and 1981, appellant participated in a series of crimes in order to support his drug habit. The judgment of sentence presently on appeal was imposed as the penalty for two of these criminal acts:
On November 1, 1979, appellant Eugene Altman Losch and Paul Aaron Wolf stole close to one thousand dollars worth of food and equipment from the Perry Valley Grange Hall in Millerstown, Pennsylvania.
On April 16, 1980, appellant and Kler Jones, Jr. stole money, a rifle, and a car from Scott and Karen Wright after gaining entry to the Wrights' residence in Newport, Pennsylvania.
The following year, appellant was implicated in several unrelated crimes including the murder of one Hank Swartz, and the solicitation of the murder of the police officer. He pleaded guilty to solicitation to commit homicide before the Honorable Keith B. Quigley and was sentenced to five years imprisonment. He began serving this sentence at the Perry County Prison where he soon gained a reputation as a model prisoner. He also testified as a Commonwealth witness--pursuant to a grant of immunity--at the trials of other individuals who were involved in the Swartz murder.
In 1984, appellant and Wolf were charged in connection with the 1979 Millerstown incident, (No. 5 of 1984), and appellant and Jones were charged in connection with the 1980 Newport incident (No. 6 of 1984). 1 Wolf and Jones pleaded guilty to various offenses and were sentenced by the Honorable Keith B. Quigley to relatively short prison terms. 2 Appellant pleaded guilty to committing one count of burglary in 1979 and to committing one count of robbery and one count of burglary in 1980. He was scheduled for sentencing before Judge Quigley on November 15, 1984.
At his November, 1984 hearing, appellant introduced testimony from eight witnesses who described his good behavior at the Perry County Prison and his cooperation with law enforcement authorities. Judge Quigley took note of this evidence, but he also considered the serious nature of appellant's past crimes. At the conclusion of the hearing, Judge Quigley sentenced appellant to three concurrent terms of ten to twenty years imprisonment. 3 The Judge ignored a defense request that he explain why appellant's codefendants had received less stringent sentences.
Appellant was transferred from the Perry County Prison to the State Correctional Institutional at Camp Hill, Pennsylvania. Meanwhile, his counsel filed a motion to modify sentence which was denied, and appealed the November 15, 1984 judgment of sentence to Superior Court. Counsel alleged that the lower court erred by failing to state on the record the reason for the substantial disparity between the sentence received by Losch and the sentences received by his codefendants. We agreed. See Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983). On March 24, 1986, a panel of this court filed an unpublished memorandum decision, 356 Pa.Super. 588, 512 A.2d 52 which vacated the judgment of sentence and remanded for resentencing.
Appellant's second sentencing hearing was held before Judge Quigley on June 20, 1986. At this proceeding, counsel introduced new evidence concerning Mr. Losch's conduct while incarcerated at the State Correctional Institution at Camp Hill, during the eighteen months since the first judgment of sentence had been imposed. Counsel directed the court's attention to a letter from a sergeant at the institution who indicated that Mr. Losch had adjusted well to prison life, and did not pose any disciplinary problems. Counsel then called five witnesses who testified that Mr. Losch had played an active role in the prison chapters of Alcoholics Anonymous and Narcotics Anonymous, and had provided religious counseling to fellow inmates as a member of the Yoke Fellowship, a Christian ministry. 4 The last witness to testify was Henry G. Baines, pastor of the Messiah Missionary Baptist Church in York, Pennsylvania. Mr. Baines stated:
[O]ver the past thirteen years I have ministered extensively in all of the prisons and correctional institutes [sic] in the State of Pennsylvania ... and I have never seen a change in a person's life of all the inmates I've ministered to like I've seen in Gene Losch.
At the conclusion of all the testimony, counsel urged the court to take this new evidence into account when resentencing Mr. Losch. 5 The attorney for the Commonwealth did not oppose this request. The trial judge, however, reluctantly concluded that he could not consider evidence of appellant's good conduct. He remarked:
Now we have a fundamental issue I think here and that is: what is the Court's power, and/or what is the Court's obligation at this time? Clearly, its obligation is to explain the disparity between the sentences imposed on Mr. Losch as well as on the co-defendants; and [Counsel] suggests the Court has the power to modify the sentence and suggests compelling reasons why that sentence should be modified. I compliment Mr. Losch and those gentlemen who work hard in this very difficult area with some success, and it must shine as a bright light when there is success; and I am sure there is not as much success as you would like. We compliment you fellows for your sincerity and your efforts.
My opinion as a Judge is that if this Court committed error in treating Mr. Losch differently than his co-defendants then he is entitled to a modification of sentence. It pains me somewhat to say this but it's my opinion that his conduct while a prisoner is irrelevant to this proceeding here today. It's not irrelevant in any sense other than that. And I mean that sincerely.
The court then proceeded with what it viewed as the sole business at hand--explaining why appellant had been punished more severely than his codefendants. The court noted that codefendants Wolf and Jones had entered into a plea bargain with the Commonwealth; they pleaded guilty in return for a promise that the District Attorney would recommend a relatively lenient sentence. The court had accepted this recommendation. On the other hand, Mr. Losch had pleaded guilty without first securing a promise of cooperation from the District Attorney's Office. After stating these facts for the record, the court again imposed a sentence of three concurrent terms of ten to twenty years imprisonment.
Counsel filed a motion to modify sentence which was denied, and appealed the new judgment of sentence to this court. In this appeal, he argues that the trial court erred: 1) by disregarding relevant evidence of appellant's good conduct; and 2) by again failing to provide an adequate statement of reasons for the discrepancy between appellant's sentence and his codefendants' sentences. 6 II.
Before addressing the merits of appellant's claims, we must decide whether the issues which he raises are properly before us. The right to appeal from a discretionary aspect of sentence is not absolute. In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the Pennsylvania Supreme Court held that such an appeal should comply with the requirements of both Pa.R.App.P. 2119(f) and section 9781(b) of the Sentencing Code.
Rule 2119(f) provides that the appellant "shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence." In the case sub judice, appellant's brief does not contain this statement of reasons and is therefore defective. The appellee, however, has never objected to this defect.
Several panels of the Superior Court which have considered the same fact pattern have reached inconsistent results. Some panels have held that any breach of Rule 2119(f) precludes review of a discretionary sentencing issue. See, e.g., Commonwealth v. Rivera, 365 Pa.Super. 361, 529 A.2d 1099 (1987); Commonwealth v. Hawthorne, 364 Pa.Super. 125, 527 A.2d 559 (1987). Other panels have held that a Rule 2119(f) violation will be overlooked unless appellee specifically directs the court's attention to this deficiency. See, e.g., Commonwealth v. Chase, 365 Pa.Super. 572, 530 A.2d 458 (1987); Commonwealth v. Rumbaugh, 365 Pa.Super. 388, 529 A.2d 1112 (1987). See also Commonwealth v. Hartz, --- Pa.Super. ---, --- n. 2, 532 A.2d 1139, 1141 n. 2 (1987) (en banc). This conflict was recently resolved by the court en banc in Commonwealth v. Krum, --- Pa.Super. ---, 533 A.2d 134 (1987); the majority in Krum adopted the view that unless the appellee objects, appellant's failure to supply a statement of reasons is not fatal to his appeal. Id., at ---, 533 A.2d at 138. Accordingly, since the Commonwealth's brief is silent as to the Rule 2119(f) defect, we will not dismiss Losch's appeal on this basis.
Since appellant's brief is not fatally defective, we must decide whether the issues presented are amenable to appellate review. Section 9781(b) of the...
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