Opinion
March 11, 1974.
April 3, 1974.
Criminal law — Practice — Sentence — Discretion of lower court — Excessive sentence — Appellate review.
1. If a sentence imposed is within the statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment.
2. The Superior Court has the power to modify an obviously excessive sentence although the power is rarely utilized, the Court preferring instead to rely on the good judgment of the trial judge.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN DER VOORT, and SPAETH, JJ.
Appeal, No. 135, March T., 1974, from judgment of sentence of Court of Common Pleas of York County, Jan. T., 1973, No. 254, in case of Commonwealth of Pennsylvania v. Michael J. Warner. Judgment of sentence affirmed.
Indictment charging defendant with burglary, larceny, receiving stolen goods, resisting arrest and assault and battery. Before ATKINS, P.J.
Plea of nolo contendere entered and judgment of sentence entered thereon. Defendant appealed.
Clayton R. Wilcox, Assistant Public Defender, for appellant.
Morrison B. Williams, Deputy District Attorney, and Donald L. Reihart, District Attorney, for Commonwealth, appellee.
Submitted March 11, 1974.
This is an appeal from the Judgment of sentence imposed by the Court of Common Pleas, Criminal Division, of York County, after the defendant's entry of a plea of nolo contendere to the charges of burglary, larceny, receiving stolen goods, resisting arrest, and assault and battery. Defendant was sentenced to undergo imprisonment for a period of time not less than five (5) years nor more than ten (10) years, sentence to begin at the expiration of the sentence which defendant was currently serving. The appeal charges that the sentence was excessive in view of all the circumstances of the case.
The Supreme Court of Pennsylvania has said that, "[i]f the sentence imposed is within statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment." Commonwealth v. Person, 450 Pa. 1, 4-5, 297 A.2d 460 (1972). See also Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Pouls, 198 Pa. Super. 595, 182 A.2d 261 (1962); Commonwealth v. Downer, 161 Pa. Super. 339, 53 A.2d 897 (1947). We ourselves have stated that we have the power to modify an obviously excessive sentence, Commonwealth v. Zelnick, 202 Pa. Super. 129, 195 A.2d 171 (1963); cert. den. 377 U.S. 1006, 12 L. Ed. 2d 1054, 84 S. Ct. 1943 (1964); Commonwealth v. Bilinski, 190 Pa. Super. 401, 154 A.2d 322 (1959), though we have rarely utilized that power, preferring instead to rely on the good judgment of the trial judge. In the case before this court, the sentence imposed, five (5) to ten (10) years for burglary, is within the statutory limits. Act or June 24, 1939, P.L. 872, § 901, 18 Pa.C.S.A. § 4901. The fact that appellant nearly lost the use of his arm as a result of his crime is unfortunate, but such injury was within the scope of the risk that appellant assumed when he engaged in the illegal activity. This was not appellant's first offense, nor were the circumstances of this crime extenuating. Accordingly, the sentence of the lower court will be sustained.
Judgment of sentence affirmed.