Commonwealth v. Velez
Commonwealth v. Velez
Opinion of the Court
This is an appeal from judgment of sentence. Appellant argues, on appeal, that the sentencing court erred in (1) not
Appellant was sentenced on various criminal charges on September 7, 1983, by the Honorable Michael Franciosa. The sentences of appellant’s co-defendants
The above cited cases hold that 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. Sinwell, supra 311 Pa.Super. at 427, 457 A.2d at 960; Commonwealth v. McQuaid, supra 273 Pa.Super. at 611, 417 A.2d at 1216; Commonwealth v. Thurmond, supra 257 Pa.Super. at 467, 390 A.2d at 1331. The reason that one co-defendant receives a more severe sentence than another must be stated on the record. Commonwealth v. Sinwell, supra, Commonwealth v. McQuaid, supra.
In the instant case, not only are we unable to discern the identity of the co-defendants’ sentencing judge from the
The dissent would have us go outside of the record below and call the prothonotary to ascertain the identity of the sentencing judges of appellant’s co-defendants. The rationale behind this proposal appears to be that these matters are recorded as business records of the court. The dissent at the same time recognizes that it is well established that an appellate court may not consider information outside the record on appeal. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). (An appellate court will not consider the statement of the trial judge that he instructed the jury on reasonable doubt where the transcript does not include instruction.) The record produced by the proceedings in the court below and general court records kept by clerical personnel are entirely different and the latter may not be utilized by an appellate court in adjudicating an appeal. The principle that an appellate court may not seek out evidence on its own is basic to our adversary system and should be absolute.
An appellate court may only review the decision of the lower court by taking into account matters that are of record. (“It is well established that an appellate court may not consider facts unless they are duly certified in the record.”); Commonwealth v. Walsh, 252 Pa.Super. 111, 113, 380 A.2d 1307, 1308 (1977); Commonwealth v. Jones,
We remand this case for reconsideration of sentence to determine whether appellant’s co-defendants were sentenced by the same judge, and if they were, whether the sentences were in fact disparate. Following proceedings below a new appeal may be taken. We do not retain jurisdiction.
. Appellant had five co-defendants. From the record, we can ascertain that two of these co-defendants are juveniles, and one co-defendant turned state's evidence. There is no additional information regarding the other two co-defendants.
Dissenting Opinion
dissenting:
The majority remands this case today because it is unable to determine from the transmitted record whether the same judge sentenced both appellant and his co-defendants. In my view a remand in these circumstances is wholly unnecessary and contrary to our concerns for judicial economy. We can easily and reliably ascertain whether the same judge presided over the sentencing of the several co-defendants, without needing to resort to a remand.
In Pennsylvania we function under a unified judicial system, of which the Superior Court and all common pleas
I recognize the long settled rule that an appellate court may not consider matters outside the record on appeal. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). Nevertheless, I respectfully submit that the identity of the presiding judge at the time of sentencing is a matter of record which we may take notice of and consider, whether it is included in the transmitted record or not.
The record keeping practices of our trial courts are controlled by statute and supervised by our Supreme Court, and their records are eminently reliable. 42 Pa.C.S. 4301;
In the interest of justice and judicial economy, I see no cause to remand this case.
Since I find appellant’s remaining claim to be without merit, I would affirm judgment of sentence.
. 42 Pa.C.S. 4301 pertains to the "Establishment and maintenance of judicial records.” This section provides that the docketing procedures of all courts of this Commonwealth “shall be uniform to the maximum extent practicable."
. Pursuant to directives issued by the Court Administrator, all counties except Philadelphia complete and submit a docket transcript form on all criminal cases. This form requires identification of the judge who presided at the time of sentencing. Philadelphia County does not submit the docket transcript form, however, the clerk of quarter
. Through inquiry I have learned that appellant and his co-defendants were tried separately and sentenced by different judges. Disparity of sentences among co-defendants in such circumstances need not be explained by a sentencing judge. Commonwealth v. Kalson, 301 Pa.Super. 31, 446 A.2d 1320 (1982).
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Philip VELEZ, Appellant
- Cited By
- 5 cases
- Status
- Published