Commonwealth v. Bauer

OLSZEWSKI, Judge,

concurring and dissenting.

I enthusiastically endorse and agree with our learned colleagues on the first and second issues presented. With regard to appellant’s third issue, however, I respectfully disagree and find that it does not constitute a substantial question for our review.

In accordance with the dictates of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), an appellant who submits an appeal from the discretionary aspects of his sentence must provide a concise prefatory statement of reasons for allowance of appeal which demonstrates a substantial question that the sentence imposed was not appro*229priate under the sentencing code. The majority states the following:

Furthermore we hold that when the imposition of sentences consecutively results in the imposition of a minimum incarceration of 30 years, and when appellant claims that the court did not consider the rehabilitative needs of the defendant, and focused solely on the seriousness of the crime, appellant has raised a substantial question for consideration by this court.

At 225, 604 A.2d at 1101, (emphasis added). There exists conflicting case law as to whether this issue presents a substantial question for review.

The majority cites Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985) and Commonwealth v. Rizzi, 402 Pa.Super. 335, 586 A.2d 1380 (1991) {en banc), as authority for this proposition. In Parrish, appellant argued to this court that her sentence was excessive in that it violated or exceeded the sentencing guidelines. Parrish, 340 Pa.Super. at 530, 490 A.2d at 906. This court addressed the merits of appellant’s assertion but failed to analyze or rule on the existence or nonexistence of a substantial question for review. This court held that the guidelines were misapplied, thus resulting in an excessively harsh sentence. Id. In so holding, this court indicated that a trial court cannot base its sentence upon the seriousness of the crime alone. Parrish, 340 Pa.Super. at 533, 490 A.2d at 908. The present case, however, is distinguishable from Parrish since appellant does not contend that his sentence violated the guidelines.

In Rizzi, appellant maintained that the sentencing judge erred in three instances: (1) by refusing to apply guidelines which had been found unconstitutional between the time of the commission of the crime and the imposition of sentence; (2) by not focusing on the rehabilitative needs of the defendant, and instead focusing solely on the seriousness of the crime; and (3) by failing to explain a deviation from the guideline ranges. Rizzi, 402 Pa.Super. at 341, 586 A.2d at 1383 (emphasis added). In its en banc decision, this *230court found that these claims presented a substantial question that the sentencing scheme as a whole had been compromised. Id. The case law supporting this statement, however, held that a substantial question exists where appellant claims that the trial judge rendered an inadequate statement of reasons for sentencing. Commonwealth v. Thomas, 370 Pa.Super. 544, 550, 537 A.2d 9, 12 (1988).

Moreover, the majority’s conclusion that a substantial question has been presented is at odds with this court’s decision in Commonwealth v. Mobley, 399 Pa.Super. 108, 581 A.2d 949 (1990), where appellant argued on appeal that he was improperly sentenced to a manifestly excessive sentence because the trial court failed to consider his rehabilitative needs. In Mobley, this court held that there was no substantial question presented since the weight accorded to various sentencing factors does not raise a substantial question absent extraordinary circumstances. Mobley, 399 Pa.Superior Ct. at 115, 581 A.2d at 952. Accordingly, the merits of appellant’s allegation were not addressed.

The majority’s finding of a substantial question is in conflict with Mobley. Since I find that no substantial question exists, I would deny appellant’s petition for allowance of appeal and would not address the merits on appellant’s third issue. Therefore, I would affirm the judgment of sentence.