Commonwealth v. Kostka

NIX, Justice,

dissenting.

The majority, in my judgment, is somewhat unclear as to the precise reason for its conclusion that a concededly legal sentence imposed in the instant matter should be vacated. It appears to argue that the defect springs from the trial *94judge’s failure to articulate his reasons for the sentence imposed. Proceeding from this premise the majority implicitly concludes that the trial court did not in fact consider the relevant statutory sentencing guidelines.1 I disagree with the validity of the initial premise and also with the conclusion sought to be drawn therefrom. I therefore dissent.

The undisputed facts established that the appellant attacked two uniformed police officers while they were in the performance of their duties. It is also conceded that appellant struck one of the officers with a nun-chukas, the equivalent of a large night stick, and kicked the second officer in the groin. The jury, after weighing the evidence, found the defendant not guilty of the felony of aggravated assault, 18 Pa.C.S.A. § 2702(a)(1) and (2), but did convict her of the misdemeanor, 18 Pa.C.S.A. § 2702(a)(3) and (4). The maximum sentence allowed under a conviction of the misdemeanor, aggravated assault, is five years imprisonment, 18 Pa.C.S.A. § 1104(1). After the jury returned the finding of guilty, the trial court imposed a sentence of not less than six months nor more than 23 months in the county jail.

The criticism of the court’s failure to articulate its reasons, on the record, for the sentence imposed is clearly unjustified. Until this Court’s decision in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140, (Filed August 17, 1977) (plurality opinion), which was handed down after the sentencing in this matter,2 there was no requirement that a court should state on the record its reasons for the sentence imposed. While the Riggins rule is a salutary one and will obviously enhance the quality of appellate review of sentences, it was never intended to apply to trials preceding its announcement. The application of the Riggins rule to a sentencing which preceded the rule by almost two years can only lead to chaos within the criminal justice system.

Equally invalid is the implicit assumption of the majority that the court’s failure to articulate its reasons suggests that *95the trial court ignored the relevant statutory sentencing guidelines. I also do not believe that the portion of the colloquy quoted in the majority opinion is indicative of the fact that the court was not mindful of these guidelines. Additionally, I do not subscribe to the belief that it can fairly be said that in view of the nature of the crime, the sentence imposed, which was far below the maximum allowed, was either excessive or unduly harsh.3

While I have been a strong proponent of broader appellate review of sentencing, I do not condone an appellate court’s interference with the reasonable exercise of the trial court’s sentencing discretion. I am reluctantly forced to conclude that in the instant case the majority’s position is but a thinly-veiled attempt to superimpose its judgment as to the appropriate sentence upon the court below. For that reason, I most strenuously voice my objection.

. 18 Pa.C.S.A. § 2702 (1973).

. The final sentence was imposed on May 23, 1975.

. The majority mentions several factors that it considers to be in mitigation. Included is the fact that neither officer sustained serious bodily injury as a result of the attack. It is clear however, that these circumstances were considered by the jury and explains their decision to acquit appellant as to the felony of aggravated assault.