Commonwealth v. Thurmond
Commonwealth v. Thurmond
Opinion of the Court
Appellant was found guilty on two counts of gambling, 18 Pa.C.S. § 5513,
In this case, the Defendant appeared as a witness on behalf of her brother on the same criminal scene, while her brother did not take the stand. Assuming the jury verdict to be correct, the Defendant was untruthful and evasive in her testimony, both as a witness on behalf of her brother and as a witness on her own behalf. Therefore, the aspect of leniency does not enter into the picture in that, no repentance is shown. At no point does the Defendant shoulder up to the responsibility, admit that she was in an illegal situation and ask the Court to aid her in rehabilitating herself. This also negatives any concept of leniency for a first offense, because that is based on the idea that a person may get into a criminal situation and not have the propensity to repeat.
Lower Court Slip Opinion at 3.
It may be that appellant’s testimony manifested a lack of repentance, although it would seem at least equally likely that she had lied in a misguided effort to help her brother. However this may be, there is an additional aspect of the case on which we require the court’s stated reasoning.
As indicated in the above excerpt from the lower court’s opinion, appellant’s brother was indicted on the same charges as appellant. He took no appeal after conviction and sentence. The brother was the manager of the diner where the gambling occurred that led to the charges against appellant; appellant, by contrast, was only a part-time employee.
In order for a trial judge to impose different sentences on co-defendants, he must find differences between the co-defendants to justify the sentences. Commonwealth v. Fitzgerald, 101 Pa.Super. 308 (1931). This writer has said: “Probably nothing has corroded respect for the criminal justice system more than judicial indulgence in unexplained widely disparate sentences.” Commonwealth v. Andrews, 248 Pa.Super. 1, 7, 373 A.2d 459, 462 (1977) (Dissenting Opinion by Spaeth, J.), allocatur granted.
The judgment of sentence is vacated, and the case remanded for resentencing.
. The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973; 18 Pa.C.S. § 5513 (1973).
. These facts are significant because the lower court expressed concern that “[t]he scene of the gambling has been a place of many arrests from assault and battery to a shooting of persons . . . .” Lower Court Slip Opinion at 2.
. The brother’s fine was higher than appellant’s — $2,000 as against $500 — but we cannot see that this difference would persuade anyone that the brother’s was the stiffer sentence.
Concurring Opinion
files a concurring statement:
I wish to express my agreement to vacate the sentence and remand based solely upon the court below failing to explain the disparate sentences between appellant and her brother.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Brenda THURMOND, A/K/A Brenda Thurman, Appellant
- Cited By
- 14 cases
- Status
- Published