Opinion
Argued September 25, 1987.
Decided December 2, 1987.
Appeal No. 97 W.D. Appeal Docket 1986, from the Order of the Superior Court, 354 Pa. Super. 633, 508 A.2d 344 (1986), of Pennsylvania entered on January 10, 1986 at No. 333 Pittsburgh, 1985, vacating the Judgment of Sentence entered February 12, 1985, of the Court of Common Pleas of Erie County, Criminal Division, at No. 1744 of 1984, and remanding for resentencing.
Michael R. Veshecco, Dist. Atty., Michael R. Cauley, Asst. Dist. Atty., Erie, for appellant.
Carmela R.M. Presogna, Asst. Public Defender, Erie, for appellee.
Prior report: 354 Pa. Super. 633, 508 A.2d 344.
Before NIX, LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.
ORDER
This appeal is dismissed as having been improvidently granted.
HUTCHINSON, Former Justice, did not participate in the consideration or decision of this case.
LARSEN, Justice, filed a dissenting opinion in which McDERMOTT, Justice, joined.
I dissent. Appellee, Harry Yarbrough, has a criminal record as long as my arm. This criminal activity spans three decades:
Date Offense(s) Disposition 05/06/53 Larceny 5 years probation
10/19/56 Larceny Pay costs/restitution
11/26/56 Carrying 3 years suspended sentence and concealed deadly released on 2 years probation weapon
04/09/59 Burglary 4-8 years Pa. Bureau of Corrections
04/11/59 Burglary 4-8 years Pa. Bureau of Corrections
05/13/59 Burglary, 4-8 years Pa. Bureau of Larceny Corrections
02/06/64 Burglary, Suspended sentence and pay Larceny costs/restitution
07/09/64 Disorderly Forfeiture $25.00 conduct
08/03/65 False Pretenses Pay restitution
09/16/65 Robbery 3-8 years Pa. Bureau of Corrections
06/23/66 Robbery, Prison 1 1/2-3 years Pa. Bureau of breech Corrections
06/28/66 Convicted parole Recommitted violator
12/16/71 Burglary 2 1/2-7 years Pa. Bureau of Corrections
09/16/74 Burglary, 5 years probation Receiving stolen property
06/02/75 Escape 1-3 years Erie County Prison
03/21/77 Retail Theft Dismissed
03/29/77 Receiving stolen nolle prosequi property
03/29/77 Receiving stolen 11 1/2-23 months Erie County property, Theft Prison by Deception
03/29/77 Receiving stolen nolle prosequi property
03/29/77 Burglary, Theft 7 years probation. Probation by unlawful revocation hearings pending taking, Receiving stolen property
01/19/79 Retail Theft 15 days Erie County Prison
01/31/79 Retail Theft 5 days Erie County Prison
01/22/80 Retail Theft $226 fines/costs
04/xx/80 Violation of 1 year probation. Probation Public Welfare revocation hearings pending Code (Fraud)
04/13/81 Retail Theft (4th 11 1/2-23 months Erie County offense) Prison. Probation revocation hearings pending
10/09/81 Retail Theft Dismissed (private complaint)
12/17/81 Violation of No 6 months probation Fault Insurance Act
06/28/84 Retail Theft (5th Still pending offense)
This final offense, the subject of the instant appeal, involved a retail theft in a supermarket at the corner of 24th and Parade Streets in Erie. Appellee was apprehended in the process of stealing four cans of sardines and one bottle of hot sauce. The trial judge carefully considered the "minor" nature of the offense and appellee's record of repeated offenses when he sentenced appellee to a term of 2 1/2 to 5 years imprisonment, well within the minimum sentencing guideline range. In supporting his decision, the trial judge emphasized that the nature of the crime was not important in light of appellee's pattern of criminal conduct and his seeming inability to conduct his life beyond the confines of prison without violating the law.
Appellee pleaded guilty to retail theft. Because this was a fifth offense of this nature, it was graded as a felony of the third degree. 18 Pa.C.S.A. § 3929(b)(1), (2). His offense gravity score was 5. Under the sentencing guidelines in effect at the time the offense was committed, the applicable minimum range was twenty-four to thirty-six months.
Superior Court, in remanding for imposition of a lighter sentence, was of the opinion that this was not a serious crime and that it did not constitute a danger to the public. Substituting its own discretion for that of the trial court, Superior Court determined that the nature of the crime outweighed appellee's extensive record. As I stated previously:
Where the sentence is within the legislative guidelines, appellate courts may not vacate sentences as being manifestly excessive merely because the trial judge imposed a tough sentence where the appellate judges would have given a lenient one.
Commonwealth v. Parrish, 515 Pa. 297, 303, 528 A.2d 151, 154 (1987) (Larsen, J., dissenting). It is clear that Superior Court exceeded its scope of appellate review and that this Court has the authority to correct this manifest error. Id.
Accordingly, I would reverse the order of Superior Court and reinstate the judgment of sentence imposed by the trial court.
McDERMOTT, J., joins in this dissenting opinion.