Com. v. Ruffo

• Decision Date: 15 January 1987
• Citation: 360 Pa.Super. 180,520 A.2d 43
• Parties: COMMONWEALTH of Pennsylvania v. Peter RUFFO, Appellant.
• Court: Pennsylvania Superior Court

Page 43

520 A.2d 43

360 Pa.Super. 180

COMMONWEALTH of Pennsylvania v. Peter RUFFO, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 22, 1986.

Filed Jan. 15, 1987.

Elaine DeMassee, Asst. Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CIRILLO, President Judge, and McEWEN, and OLSZEWSKI, JJ.

OLSZEWSKI, Judge:

This is an appeal from judgment of sentence imposed following appellant's plea of guilty to burglary, indecent assault, aggravated assault, possession of an instrument of crime and kidnapping. Appellant contends that the trial court abused its discretion in sentencing him to 20 to 40 years total confinement when it failed to consider any factor other than the nature of the crime involved. We have carefully reviewed the record and conclude that this contention has merit. Accordingly, we vacate the judgment of sentence and remand the case for resentencing.

The trial court set out the facts as follows.

On August 10, 1984, Stephen and Anita McBeth, 2636 Brown Street, City and County of Philadelphia, hereinafter Complainants, resided at the aforementioned address with their two children, Micah and Leila. On the evening in question, Leila was two years of age. At approximately 9:00 p.m., the Complainants put the two children to bed together in the second floor middle bedroom. At approximately 11:00 p.m., the Complainants retired to bed and Mrs. McBeth checked on the children prior to returning and both were in their beds asleep.

On the morning of Saturday, August 11, 1984, Mrs. McBeth arose at approximately 6:30 a.m. and began to prepare breakfast. Her son Micah came downstairs and questioned the whereabouts of his sister, Leila. The entire family frantically searched the house for Leila, but to no avail. The family summoned the police when they observed that a window fan in the home's living room had been forced out and was lying on the floor leaving the window wide open.

A search was immediately commenced of the neighborhood for the young child and she was located in a badly beaten condition lying in an alley approximately one block from her home. Philadelphia Police Detective Matthew Hrobak would testify, "she (Leila) was in a fetal position with her head facing South and the child was covered from head to toe with fecal matter. There was a diaper about three feet away with no fecal matter on it. Leila had several cuts and bruises all about her body. At the time she was not breathing and appeared to be blue." (N.T. January 6, 1986, Page 55). The detective would further testify "... underneath Leila there were two pools of blood and green glass covered with what he thought was blood. The child was bleeding from her neck, chest, abdomen, and her vagina and that she had no pulse and her skin was cold" (Ibid Page 56). The child was transported to Hahnemann University Hospital where she was admitted into the Intensive Care Unit for five days and discharged from the hospital on August 21, 1984. Dr. Harry Kaplan, Chief of Pediatric Services for Hahnemann Hospital, indicated Leila's diagnosis upon admission as follows:

"Extensive bruises on the forehead and both temples, bruising of both ears, a three to four centimeter deep laceration across the front of her neck exposing her sterno-mastoid muscle; there were multiple lacerations across the abdomen, multiple lacerations across the chest wall, a vaginal laceration and a third degree tear of the vagina, that the rectal mucosa was torn and exposed and there were extensive blood clots indicating recent bleeding in both the vaginal and anal regions. There was multiple scratches over her entire body and she was in a state of shock, not fully conscious, very high pulse rate and very weak."

Further, as a result of the deep cuts on the Complainants chest, abdomen and neck, permanent scarring has occurred which may possibly be eradicated, if at all, only through plastic surgery.

Opinion at 2-3.

Appellant was arrested on August 14, 1984. At that time appellant gave a statement detailing what he remembered of the crime. He admitted that he had entered the McBeth home during the evening of August 11, 1984 and that, upon seeing Leila wake up, had "freaked out" and "just grabbed her." (N.T. 1/6/86, 72). He recalled carrying Leila downstairs, out the window through which he had entered and to the alley where she was found. (N.T. 1/6/86, 72). Appellant stated that he picked up a beer bottle which was lying in the alley and then said that that was all he could remember. Shortly thereafter, however, when questioned further, appellant said he thought he remembered "going over her chest with the bottle and telling her to shut up." (N.T. 1/6/86, 74). A mental health evaluation indicates that appellant said he had been drinking and using drugs (quaaludes) prior to the incident and that he had entered the McBeth home intending to rob it.

After denying a motion to suppress appellant's statement and its fruits, the trial court accepted appellant's open plea of guilty on January 6, 1986. Following a hearing on May 5, 1986, the trial court imposed prison sentences of ten to twenty years for the burglary, and ten to twenty years for the kidnapping, which were to run consecutively; and terms of one to two years for indecent assault, five to ten years for aggravated assault, and two and one-half to five years for possession of an instrument of crime, all of which were to run concurrently with the sentence for burglary.

Appellant filed a petition to reconsider sentence on May 14, 1986, which the trial court denied without a hearing on the same date. This appeal followed.

Appellant argues that the sentence was manifestly excessive and an abuse of discretion in that the trial judge failed to consider the relevant sentence guideline ranges, 42 Pa.Cons.Stat. § 9721, 204 Pa.Code § 303.2, et seq. (hereinafter referred to as "sentencing guidelines"), or any other relevant factor except the nature of the crime itself. Sentencing is a matter within the sound discretion of the trial court. Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986). The trial court, however, must exercise its discretion in view of statutory guidelines and considerations. Commonwealth v. Hollerbush, 298 Pa.Super. 397, 444 A.2d 1235 (1982). We stated the prevailing principle in Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982):

It is true that the sentence imposed is normally left undisturbed on appeal because the trial court is in a far better position to weigh the factors involved in such a determination. However, we have held that the court's discretion must be exercised within certain procedural limits, including the consideration of sufficient and accurate information.

Id., 301 Pa.Super. at 31, 446 A.2d at 1320 (quoting Commonwealth v. Martin, 466 Pa. 118, 131, 351 A.2d 650, 657 (1976)). When so exercised, the sentence will not be disturbed by an appellate court unless it is so clearly excessive as to constitute an abuse of discretion. Commonwealth v. Hollerbush, supra, 298 Pa.Super. at 406-407, 444 A.2d at 1240.

A sentencing court's responsibilities are set forth in the Sentencing Code, 42 Pa.Cons.Stat. § 9701, et seq. Of significance, a sentencing court must consider the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing and set out in 42 Pa.Cons.Stat. § 9721, 204 Pa.Code § 303.2, et seq. 42 Pa.Cons.Stat. § 9721(b). If the court departs from these guidelines, it must provide a "contemporaneous written statement" of the reason or reasons for the deviation. Id. Further, in imposing a sentence of total confinement, the sentencing court must consider the history, character and condition of the defendant and not only the nature and circumstances of the crime. 42 Pa.Cons.Stat. § 9725; Commonwealth v. Arent, 352 Pa.Super. 520, 508 A.2d 596 (1986). Additionally, the court must follow "the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.Cons.Stat. § 9721(b).

Our Supreme Court summarized the limits restricting a sentencing court's discretion in Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978):

The constraints placed upon the trial court in the exercise of its discretion are that it must not overlook pertinent facts, disregard the force of the evidence, commit an error of law, or inflict punishment exceeding that prescribed by statute. The trial court must thoroughly examine the facts and circumstances of the crime and the background and character of the defendant, and should consult a pre-sentence report if one has been prepared, especially where, as here, incarceration for one year or more is a possible disposition. Likewise, the court should consider any information in the record bearing on degree of punishment.

Id., 479 Pa. at 212-213, 387 A.2d at 1299 (citations omitted). See also Commonwealth v. Doyle, 275 Pa.Super. 373, 380, 418 A.2d 1336, 1340 (1979); Commonwealth v. Wicks, 265 Pa.Super. 305, 310, 401 A.2d 1223, 1225 (1979); Commonwealth v. Valentin, 259 Pa.Super. 496, 500, 393 A.2d 935, 939 (1978).

After thorough review of the record in light of the foregoing standards and principles, we agree with appellant that the trial court did not adequately discharge its sentencing responsibilities. We therefore vacate the judgment of sentence and remand for resentencing.

Beginning our review, we observe first that, although the sentence is within the limits prescribed by statute, the sentencing judge deviated substantially from the sentencing guideline ranges. In fact, the trial judge imposed the statutory maximum sentence for each crime to which appellant pled guilty. Thus, for kidnapping, which has an offense gravity score of...