Commonwealth v. Szczesniewski , 404 Pa. Super. 617 ( 1991 )

POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County, following the conviction of appellant on two counts of murder in the first degree. The jury determined that appellant had conspired with Herbert Leitner and Edward Peterson in the execution style slaying of Mario Papini and his girlfriend Kathleen Logan.

Appellant raises five issues on appeal: 1) Did the trial court err by permitting evidence of uncharged drug crimes to be admitted; 2) Was the evidence insufficient; 3) Did the trial court err by permitting Assistant District Attorney Charles F. Gallagher to testify concerning why Commonwealth witness Wayne Szczesniewski was not charged with any crime in relation to the murders; 4) Did the trial court err by permitting evidence of a previous attempt months earlier to kill Mario Papini to be admitted; and 5) Did the sentencing court abuse its discretion by failing to set forth adequate reasons to justify the gross disparity of sentences imposed on appellant and his accomplices who were the principals in the murder.

Having reviewed the record and the parties’ briefs, we find that the trial court has adequately addressed and correctly disposed of the first four allegations of error raised by appellant. Accordingly, we affirm on the opinion of the court below, and we adopt the opinion of the Honorable Lynne M. Abraham as our own for the purposes of allocatur.

We comment further only to address appellant’s attack on his sentence. Appellant was tried before Judge Abraham who then imposed two consecutive life sentences. Appellant’s accomplices were tried before Judge George J. Ivins who, at the time of appellant’s sentencing, had already imposed two concurrent life sentences each upon Leitner and Peterson. Appellant argues that Judge Abraham erred by failing to place on the record adequate reasons for the gross disparity of sentences between appellant and his accomplices. Herein, appellant relies upon the following language in Commonwealth v. Holler, 326 Pa.Super. 304, 310, 473 A.2d 1103, 1107 (1984):

... We recognize that it was not incumbent upon the lower court to be guided by the sentence a different court imposed on appellant’s co-defendants. Commonwealth v. Neal, 258 Pa.Super. 375, 383, 392 A.2d 841, 845 (1978). Also see Commonwealth v. Hollerbush, 298 Pa.Super. 397, 444 A.2d 1235 (1982). Nevertheless, we would also point out that there should not be a great disparity in the sentences imposed on codefendants unless facts exist to warrant the unequal sentences. See Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983); Commonwealth v. Parry, 306 Pa.Super. 390, 452 A.2d 781 (1982). If the court believes that sufficient factors exist to warrant the disparity in the sentences, the reasons therefore should be articulated on the record. Commonwealth v. Sinwell, supra.

See also Commonwealth v. Myers, 370 Pa.Super. 326, 536 A.2d 428 (1988).

Despite common misconception about “life sentences”, a “life sentence” in Pennsylvania is just as the name implies, imprisonment for life. After final appellate review of the sentence, only the Governor, based on the recommendation of the Board of Pardons, may commute life imprisonment to life on parole. See 37 Pa.Code § 81.1, et seq. Statistics indicate that only 32 life sentences were commuted between 1980 and 1987 and that the average time served for those commuted was 19.1 years.¹

Due to the nature of a life sentence, two consecutive life sentences are, in reality, no longer than two concurrent life sentences or, for that matter, one life sentence. All would require appellant to spend his life in prison. Instantly, it is ludicrous to think that if the Governor decided to commute the first of appellant’s life sentences to life on parole, he would not also similarly commute his second sentence. Thus, we find that there is not a “great disparity” between appellant’s consecutive life sentences and his accomplices’ concurrent life sentences.

Second, appellant and his accomplices appeared before different judges for sentencing. Therefore, Judge Abraham was not required to explain the alleged disparity in sentencing. Myers, 536 A.2d at 430; Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990) (the fact that appellant received a greater sentence than that of his co-conspirators is not in and of itself sufficient grounds to merit resentencing); Hollerbush, 444 A.2d at 1241.²

Moreover, assuming that Judge Abraham was required to explain her reasons for the difference in sentences, we find that she did place adequate reasons on the record. Instantly, appellant’s life sentence was mandatory. 18 Pa.C.S.A. § 1101(a). Judge Abraham’s only discretion was whether to impose the life sentences consecutively or concurrently. In deciding to impose consecutive life sentences, Judge Abraham specifically stated that she believed the sentences imposed by Judge Ivins were “inappropriate,” and that she would not diminish the severity of appellant’s crimes by imposing concurrent sentences “for two murders by saying, well, two people are killed, you get two for the price of one.” Those reasons, in conjunction with the remainder of the sentencing record, demonstrate no abuse of discretion by the court below. See Fuller, 579 A.2d at 887, citing Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988).³

Judgement of sentence affirmed.

DEL SOLE, J., files a dissenting opinion.

1 . The Department of Corrections Statistical Report, 1980-1987, reveals the following:

Year Total Lifers Commuted Died Total Discharged

1980 848 16 6 22

1981 964 5 5 10

Year Total Lifers Commuted Died Total Discharged

1982 1074 4 4 8

1983 1195 3 8 11

1984 1311 1 7 8

1985 1429 2 8 10

1986 1544 1 7 8

1987 1674 0 5 5

Total 32 50 82

Average Time Served 19.1 yrs 9.9 yrs 13.5 yrs

2 . We note that the language in Holler, 473 A.2d at 1107, regarding the requirement that "great disparity” in sentence must be explained, which was cited with approval in Myers, 536 A.2d at 430, is dicta with questionable support. Although the Holler court commented on disparate sentences by different judges, it did so unnecessarily as the court had already determined remand for resentencing was required because of a woefully inadequate sentencing record. Commonwealth v. Krysiak, 369 Pa.Super. 293, 296, 535 A.2d 165, 167 (1987), allocatur denied 518 Pa. 637, 542 A.2d 1366.

Further, in support of the proposition that a "great disparity” in sentences must be explained, the Holler court cited to Sinwell, supra, and Parry, supra. See also Krysiak, 535 A.2d at 167 citing, Commonwealth v. Gelormo, 327 Pa.Super. 219, 475 A.2d 765 (1984). Sinwell, supra, Parry, supra, and Gelormo, supra, all relate to disparity in sentences imposed upon codefendants by the same judge, not a different- judge. Thus, those cases do not address the precise proposition for which they were cited.

However, we must remember that when individual sentencing judges are simply part of the same Court of Common Pleas, they should endeavor to mete out similar sentences to co-defendants when justice so dictates.

3 . We comment further only to address the dissent of our esteemed colleague the Honorable Joseph Del Sole. Instantly, the testimony of District Attorney Charles F. Gallagher was offered solely to rehabilitate the credibility of Commonwealth witness Wayne Szczesniewski. Thus, we find that the lower court did not err when it permitted the Commonwealth to rehabilitate the credibility of its witness Wayne Szczesniewski.

The lower court succinctly characterized appellant’s trial strategy, "In an attempt to discredit [Wayne] trial counsel sought to portray Wayne as the accomplice, not Stuart, and to create the inference that Wayne had falsely and corruptly placed blame on Stuart because the prosecutor’s office in Philadelphia offered him preferential and exceedingly beneficial treatment and favors as incentives for him to do so.” Trial Ct. Op., p. 25. Without a doubt, the Commonwealth should be permitted to rehabilitate a witness whose credibility has been assailed by the defense. Commonwealth v. Griffin, 511 Pa. 553, 567-570, 515 A.2d 865, 872-873 (1986); Commonwealth v. Johnson, 441 Pa. 237, 239-242, 272 A.2d 467, 469-470 (1971); Commonwealth v. Nelson, 274 Pa.Super. 526, 527-533, 418 A.2d 531, 532-533 (1980).

Under the circumstances sub judice, District Attorney Gallagher’s testimony was plainly admissible to rebut defense counsel's suggestion that Wayne falsely accused appellant in exchange for preferential treatment by the Commonwealth. Cf., Griffin, 515 A.2d at 872-873 (proper to permit state trooper to testify that no deals or promises were made in exchange for witness’ prior consonant statement). District Attorney Gallagher testified that appellant did not receive preferential treatment in exchange for his testimony. In response to defense counsel’s assertion that Wayne was not prosecuted for the present murders in exchange for his testimony, it was proper to permit District Attorney Gallagher to testify as to the process he used to decide whether to indict Wayne. Further, we note that much of the testimony about which appellant now complains was elicited on cross-examination by defense counsel.

This is not a case, as the dissent asserts, where the Commonwealth impermissibly introduced evidence on direct examination which vouched for the credibility of its own witness. Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147 (1990) is inapposite presently. Therein, the United States Attorney for the Western District of Pennsylvania, the District Attorney of Allegheny County and the Attorney General for the Commonwealth of Pennsylvania placed the imprimatur of their offices as support for the proposition that the Commonwealth witnesses were “telling the truth." Instantly, District Attorney Gallagher’s testimony was offered only to rehabilitate Wayne’s credibility and to rebut defense counsel’s assertion of corrupt motives and bias. Moreover, the evidence in Bricker, supra, not only enhanced the otherwise un-impeached credibility of Commonwealth witnesses, but also tended to demonstrate that the accused had the same opportunity as the Commonwealth’s witnesses to come forward and admit his involvement in criminal activity yet refused. Thus, the jury might have focused on the fact that Bricker did not take the stand in his own defense. Such was not the case presently.

In addition, Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), as cited by the dissent, is also inapposite to the case before us. In Seese, supra, our Supreme Court ruled that expert evidence aimed at enhancing the credibility of a witness is inadmissible. However, District Attorney Gallagher did not testify as an expert on criminal law who was commenting on the veracity of a particular class of Commonwealth witnesses. Rather, Gallagher simply testified that Wayne did not receive favorable treatment in exchange for his testimony and that the decision whether to prosecute Wayne for the present murders was made independently of Wayne's decision to testify for the prosecution. This is not a case like Seese, supra, where expert testimony was offered to demonstrate the veracity of a particular class of persons. Instantly, the jury was simply presented with the information necessary to make a just assessment of the credibility of the Commonwealth’s key witness.

Moreover, the lower court, in an abundance of caution, instructed the jury:

Since Mr. Gallagher has testified that prosecutorial discretion is involved in making decisions as to who shall be charged and who shall not be charged, this involves his testimony as to those things that went on in his thinking, which may or may not be covered on cross-examination by Mr. Zucker.

That doesn’t mean that you may agree with his decision or that you can’t disagree with him. You may or may not, if you choose. The only purpose he is here to testify today is with regard to who was it that made the decision not to charge Wayne and what were the things that went into it, not that he was correct or incorrect in making that decision, that’s a judgment for the jury to make. In sum, we find that it was proper to permit District Attorney

Gallagher to testify in order to rebut defense counsel’s argument that Wayne Szczesniewski was given favorable treatment in exchange for his testimony. Further, the lower court's cautionary instruction and final jury instructions made it abundantly clear that it was the jury’s exclusive function to assess Wayne’s credibility, and therefore, reversible error was not committed. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976).