Commonwealth v. Parrish
Commonwealth v. Parrish
Dissenting Opinion
dissenting.
The majority quashes this appeal for lack of jurisdiction. I dissent. Although the provisions of 42 Pa.C.S.A. § 9781(f) appear to preclude review in this Court of the discretionary aspects of sentencing,
On August 23, 1983, at approximately 10:00 p.m., Cheryl M. Parrish, appellee herein, got behind the wheel of her automobile after imbibing a considerable quantity of alcohol,
Appellee attempted to convince authorities that she was the victim of a hit and run accident in front of her residence, but her vehicle, a light blue compact model, matched
Appellee was charged with seven violations of the Motor Vehicle Code: homicide by vehicle (75 Pa.C.S.A. § 3732); homicide by vehicle while driving under the influence (75 Pa.C.S.A. § 3735); driving under the influence (75 Pa.C.S.A. § 3731); reckless driving (75 Pa.C.S.A. § 3714); leaving the scene of an accident involving death or personal injury (75 Pa.C.S.A. § 3742); driving on roadways laned for traffic (75 Pa.C.S.A. § 3309); and duty to give information and render aid (75 Pa.C.S.A. § 3744). Through her trial counsel, appellee negotiated a plea bargain and entered a plea of guilty to the charges of homicide by vehicle, driving under the influence of alcohol and leaving the scene of an accident involving death or personal injury.
Appellee was sentenced in the Court of Common Pleas of Potter County on February 27, 1984, to IV2 to 3 years incarceration on the charge of homicide by vehicle, a consecutive term of 1 to 2 years on the charge of driving under the influence, a concurrent term of 6 months to 1 year on the charge of leaving the scene of an accident, and the payment of fines totalling $1,000.00 plus the costs of prosecution. The prison terms were to be served in the State Correctional Institution at Muncy. The trial judge denied appellee’s motion for reconsideration of sentence after hearing on March 19, 1984, and appellee timely appealed to Superior Court on the issue of excessiveness of the sentence imposed.
Superior Court, in a per curiam opinion, 340 Pa.Super. 528, 490 A.2d 905 (1985) (per Cirillo, J., Tamilia, J., and Montgomery, J.J.) acknowledged that none of the individual
We granted the Commonwealth’s Petition for Allowance of Appeal, 508 Pa. 612, 499 A.2d 1063 (1985); and the majority of this Court quashes the appeal, thereby giving
It is well settled that the imposition of sentence is within the sound discretion of the sentencing judge and will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Plank, 498 Pa. 143, 445 A.2d 491 (1982); Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980) . An abuse of discretion has been described as the overlooking of pertinent facts, disregard of the force of evidence, commitment of an error of law, or imposition of a sentence exceeding that prescribed by statute. Commonwealth v. Townsend, 497 Pa. 604, 443 A.2d 1139 (1982); Commonwealth v. Edrington, supra. The trial court must weigh the defendant’s character against the circumstances of the offense, Commonwealth v. Edrington, supra; must give due consideration to the statutory sentencing guidelines, Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981) ; and must impose a sentence which 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.C.S.A. § 9721(b). See Commonwealth v. Tomasso, 506 Pa. 344, 485 A.2d 395 (1984) (per curiam, Larsen, J., dissenting). All of these functions comprise the discretionary aspects of sentencing and are within the bailiwick of the sentencing court, not the appellate court.
It is clear from the record that the trial court, in imposing sentence, painstakingly reviewed the relevant evidence in the case and all of the aggravating and mitigating circumstances relating to the appellee. He agonized over passing a proper sentence, one that was consistent with the requirements of justice under all of the circumstances in the case. Having done so, the trial court imposed a sentence that was, as Superior Court acknowledged, within the sentencing guidelines and not beyond the maximum penalties established by the legislature. The sentence he did impose was not the one which the Superior Court panel would have
We recognized, when we upheld the constitutionality of Pennsylvania’s “drunk driving law,” 75 Pa.C.S.A. § 3731(a)(4), in Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983), that:
traffic deaths commonly exceed 50,000 annually in the United States, and ... approximately one-half of these fatalities are alcohol related____ When we consider as well that over three-quarters of a million human beings are seriously, and often permanently, injured and maimed as a result of alcohol related accidents, the emotional trauma and economic loss experienced by the victims and their families, and the millions of dollars of property damage, it is easy to see that society is faced with a problem of frightening and epidemic dimensions.
Id., 504 Pa. at 249, 470 A.2d at 1341 (citations omitted).
The case here is a serious one. A boy of 15 was killed when he was struck by a vehicle operated by appellee who had consumed enough alcohol to be legally intoxicated 90 minutes after the incident. Appellee took affirmative steps and admitted lying to cover up the true events of the evening, before eventually recanting her fabrication and telling a different story. If she had been tried and convicted on the charge of homicide by vehicle while driving under the influence (75 Pa.C.S.A. § 3735) — a real possibility in this case — she would have been subject to a three year mandatory minimum sentence. Through the efforts of her attorney in negotiating a plea bargain, the Section 3735 charge was dropped in return for her guilty plea to the three charges on which she was sentenced. The minimum sentence she received was one-half year less than the mandatory minimum provided for by Section 3735. This sentence may be «viewed by some to be harsh, but the point is that
Therefore, it is equally clear that Superior Court exceeded its scope of appellate review in finding that the sentencing court abused its discretion and imposed a manifestly excessive sentence. Despite the mandatory language of 42 Pa.C.S.A. § 9781(f), it cannot be read to eliminate this Court’s inherent authority to review, on a limited basis, a ruling by an intermediate appellate court which is an abuse of discretion or exceeds its authority.
We have held, in another context, that where an appeal is prohibited by statute, limited review is available in this Court to review (1) the question of jurisdiction; (2) the regularity of the proceedings below; (3) questions of excess in exercise of powers; and (4) constitutional questions. See Guthrie v. Borough of Wilkinsburg, 508 Pa. 590, 499 A.2d 570 (1985); City of Washington v. Police Department of Washington, 436 Pa. 168, 259 A.2d 437 (1969).
In Guthrie, we determined that limited judicial review of an arbitration award under the Pennsylvania Labor Mediation Act, 43 Pa.C.S.A. §§ 211.31-218, was appropriate in spite of strong language in the Act which disapproves court intervention in dispute resolution. Section 7 of Act 111, 43 Pa.C.S.A. § 217.7, provides in relevant part:
Determination; appeal; implementation ... (a) The determination of the majority of the board of arbitration thus established shall be final on the issue or issues in dispute and shall be binding upon the public employer and the policemen or firemen involved____ No appeal therefrom shall be allowed to any court.
If an appeal is prohibited by an Act, or the decision of the Agency is stated to be final or conclusive, the law is well settled that an appeal will lie to the Courts in the nature of a narrow certiorari and this Court will review only (1) the question of jurisdiction; (2) the regularity of the proceedings before the Agency; (3) questions of excess in exercise of powers; and (4) constitutional questions.
436 Pa. at 174, 259 A.2d at 441 (citations omitted) (emphasis added) (quoting Keystone Raceway Corp. v. State Harness Racing Comm., 405 Pa. 1, 5-6, 173 A.2d 97, 99 (1961)).
Although broad and narrow certiorari have been eliminated from our lexicon by 42 Pa.C.S.A. § 5105(d)(1),
This Court has long had the jurisdiction to consider an appeal from a final judgment of Superior Court. See Kraemer v. Guarantee Trust & Safe Deposit Co., 173 Pa.
Review of Section 9781(f) cases is not beyond our jurisdiction where, as here, the trial court imposes a sentence within the statutory guidelines after full consideration of all relevant circumstances under the Sentencing Code and all criteria established by case law to guide sentencing decisions. Superior Court, in substituting its notion of the appropriate sentence for that of the trial judge, improperly “tinkered” with the lawfully imposed sentence.
For the foregoing reasons, I would reverse the order of Superior Court and reinstate the sentences imposed by the trial court.
. Section 9781(f) provides:
(f) Limitation on additional appellate review. — No appeal of the discretionary aspects of the sentence shall be permitted beyond the appellate court that has initial jurisdiction for such appeals.
Act 1978, Nov. 26, P.L. 1316, No. 319, § 3, effective Jan. 1, 1979.
. An hour and a half following the incident giving rise to the criminal charges filed against appellee, her blood alcohol level measured .12. It is a criminal offense to drive in this Commonwealth when the amount of alcohol by weight in the blood is .10% or greater. 75 Pa.C.S.A. § 3731(a)(4) as amended 1982, Dec. 15, P.L. 1268, No. 289 § 9.
. The total penalty imposed was 2½ to 5 years and a fine of $1,000 plus costs. The maximum total penalty under the law, which penalty the trial court could have imposed, was 8 years in prison and $17,500 in fines. 18 Pa.C.S.A. §§ 1101(3) — (5) and 1104(l)-(3) (setting forth maximum fines and terms of imprisonment for misdemeanors of the first, second and third degrees).
Homicide by vehicle is a misdemeanor of the first degree. 75 Pa.C.S.A. § 3732. Under the Sentencing Guidelines, a l½ year minimum period of incarceration is the highest aggravated minimum sentence for a misdemeanor of the first degree, 304 Pa.Code Ch. 303, § 303.9(b), and this is the minimum sentence imposed by the trial court for the homicide by vehicle charge. Leaving the scene of an accident involving death or personal injury is a misdemeanor of the third degree. 75 Pa.C.S.A. § 3742(b). The statutory limit of a one year period of incarceration is the aggravated minimum sentence for a misdemeanor of the third degree, 204 Pa.Code Ch. 303, § 303.9(b), and the trial court imposed a V2 year minimum sentence for the leaving the scene of the accident charge.
Driving under the influence of alcohol (D.U.I.) is a misdemeanor of the second degree. 75 Pa.C.S.A. § 3731. A D.U.I. conviction carries a statutory maximum of 2 year’s imprisonment, 18 Pa.C.S.A. § 1104(2), and the court may not impose a sentence of less than 48 hours on a first time offender. 75 Pa.S.C.A. § 3731(e)(1)(i). Superior Court took great umbrage with the 1 to 2 year sentence the trial court imposed for the D.U.I. charge, stating that it was "identical to the maximum mandatory sentence for a four-time offender.” 340 Pa.Super. at 532, 490 A.2d at 907. The penalties outlined for D.U.I. in Section 3731 are mandatory minimum penalties and should not be regarded by sentencing tribunals as sentencing ranges similar to those found in the Sentencing Guidelines.
. Section 5105(d)(1) is applied when we grant a petition for allowance of appeal pursuant to 42 Pa.C.S.A. § 724(a). Section 5105(d)(1) states:
Scope of appeal.—
(1) Except as otherwise provided in this subsection an-appeal under this section shall extend to the whole record, with like effect as upon an appeal from a judgment entered upon the verdict of a jury in an action at law and the scope of review of the order shall not be limited as on broad or narrow certiorari.
. See the Commentary to IV ABA Standards for Criminal Justice, Standard 20-3.1, Duties of Reviewing Court (1980), for a discussion of the proper role of reviewing courts in relation to sentencing courts.
Opinion of the Court
ORDER
Motion to Quash Appeal granted for lack of jurisdiction. See 42 Pa.C.S. § 9781(f).
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellant, v. Cheryl M. PARRISH, Appellee
- Cited By
- 13 cases
- Status
- Published