Commonwealth v. Riggins , 232 Pa. Super. 32 ( 1974 )

Opinion by

Price, J.,

Appellant was found guilty by a jury of a violation of The Uniform Controlled Substance, Drug, Device and Cosmetic Act for possession of 53.9 grams of marijuana.¹ He was later sentenced to two to five years imprisonment and a $100 fine.² In this appeal, appellant contends that the lower court abused its discretion in imposing sentence upon appellant, in view of the fact that others charged and convicted in Lancaster County of the same or more serious offenses were granted less severe sentences.

The trial judge has broad discretion in imposing sentence. Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Cox, 441 Pa. 64, 270 A.2d 207 (1970). If 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. Hill, 453 Pa. 349, 310 A.2d 88 (1973); Commonwealth v. Person, 450 Pa. 1, 297 A.2d 460 (1972); Commonwealth v. Wrona, supra; Commonwealth v. Warner, 227 Pa. Superior Ct. 291, 324 A.2d 361 (1974); Commonwealth v. Zelnick, 202 Pa. Superior Ct. 129, 195 A.2d 171 (1963), cert. denied, 377 U.S. 1006 (1964); Commonwealth v. Pouls, 198 Pa. Superior Ct. 595, 182 A.2d 261 (1962). This court has the power to modify an obviously excessive sentence, but has rarely utilized that power, preferring instead to rely on the good judgment of the trial judge. Commonwealth v. Zelnick, supra; Commonwealth v. Bilinski, 190 Pa. Superior Ct. 401, 154 A.2d 322 (1959); Commonwealth v. Warner, supra.

Although it is not clear from appellant’s brief, apparently he is contending that he received a more severe sentence, because of Ms exercise of the right to stand trial, than defendants who had pled guilty. In support of this contention, appellant cites four examples of offenders charged and convicted of the same or more serious offenses in Lancaster County who received lighter sentences. The four convictions, one in 1973 and three in 1974, involved possession or delivery of heroin or marijuana. The defendants were sentenced to periods of imprisonment ranging from three months to twenty-three months, and, in one case, two years probation. In each, case the defendant had pled guilty to the charges, and was sentenced pursuant to plea bargains entered into with the District Attorney’s Office. The four defendants had no connection with the appellant, and there is no indication as to whether the four were tried before the same judge.

We find that the four isolated instances cited by appellant do not indicate a concerted attempt by the trial courts of Lancaster County to impose more severe sentences upon those who request a trial as opposed to those defendants who plead guilty.³ To randomly choose four example cases over a two-year period and to impute appellant’s conclusions, is to assign immense consequences to the sparse and self-serving record presented by appellant. Appellant provides no information as to the disposition of other convictions in Lancaster County for similar offenses during 1973 and 1974, nor does he negate possible extenuating circumstances involved in any of the four cases.⁴ In light of these obvious difficulties, we find that appellant’s contention has no basis.

Appellant’s imposed sentence was within the statutory limits, and, despite appellant’s contention, we do not view the sentence manifestly excessive so as to constitute too severe a punishment.

Judgment of sentence affirmed.

1 Act of April 14, 1972, P. L. 233, No. 64, §13, as amended,, Act of October 26, 1972, P. L. 1048, No. 263, §1 (35 P.S. §780-113(a) (30)).

2 Appellant was sentenced pursuant to section 780-113(f) (2), which provides:

“(f) Any person who violates clause (30) of subsection (a) with respect to:

“(2) Any other controlled substance or counterfeit substance classified in Schedule I, II, or III, is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding five years, or to pay a fine not exceeding fifteen thousand dollars ($15,-000), or both.

3 In Commonwealth v. Staley, 229 Pa. Superior Ct. 322, 324 A.2d 393 (1974), the trial judge indicated to appellant’s counsel that he was going to impose a more severe sentence because appellant had not pled guilty, but had instead chosen to go to trial. This court noted “that a plea of guilty may be a proper factor for a judge to consider in deciding whether to give a more lenient sentence. It does not follow that the converse is true. A plea of not guilty or a demand for a jury trial are not factors that a judge should consider in deciding whether to give a more severe sentence.” 229 Pa. Superior Ct. at 324, 324 A.2d at 395.

In Staley, the record contained a statement by the trial judge to defense counsel indicating that the court was imposing a more severe sentence because of the defendant’s lack of a guilty plea. In the instant appeal, the record contains no such statement, and the appellant’s contentions are apparently based on an intuitive feeling that the trial courts of Lancaster County impose more severe sentences to those who demand trials. Staley is inapposite to this appeal.

4 Appellant did state that “[t]he listed names were but a few of the many who have received better treatment at the hands of the Lancaster County Court.” Appellant’s brief at 3-4.