# Commonwealth v. Tessel > Supreme Court of Pennsylvania · October 25, 1985 · 347 Pa. Super. 37 URL: https://www.frixlaw.com/law-library/cases/9639152 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Detlev TESSEL, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** October 25, 1985 - **Citations:** 347 Pa. Super. 37; 500 A.2d 144; 1985 Pa. Super. LEXIS 9767 - **Precedential status:** Published - **Opinion:** Concurrence by Tamilia - **Judges:** Spaeth, Beck, Tamilia - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9639152 ## How later opinions describe it (automated extraction) - explaining that in Rieland, “the confession was also admissible to prove the commission of the inchoate crime of criminal conspiracy, despite the lack of any common element, because the crimes of burglary and conspiracy arose from a common transaction” - stating that “while a defendant may be charged with and adjudged guilty of both burglary and theft, he may not be sentenced for both crimes.” ## Opinion text TAMILIA, Judge, concurring: I concur in the result, however, I take exception with that portion of Judge Spaeth’s Opinion at page 19 et seq. in its discussion regarding suspended sentences. Judge Spaeth relies on footnote 7 in Commonwealth v. Maguire, 307 Pa.Super. 80 , 452 A.2d 1047 (1982) which ultimately suggests there is no provision for suspended sentences in the Sentencing Code, 42 Pa.C.S.A. § 9721, and *55 better practice would avoid its use. This falls short of declaring it an illegal sentence. Likewise, Judge Spaeth cites Commonwealth v. Ferrier, 326 Pa.Super. 331 , 473 A.2d 1375, 1378 (1984) as not sanctioning suspended sentences as a sentencing alternative, when in fact Ferrier can fairly be interpreted to mean an indefinitely suspended sentence as not being equated with probation, thereby not being subject to subsequent revocation. Commonwealth v. Brown, 290 Pa.Super. 448, 453 , 434 A.2d 838, 840 (1981) permitted the Superior Court to sua sponte question the legality of a sentence, remand to have it determine whether it intended not to sentence or to enter a “sentence of no further penalty.” Brown also considered, after Commonwealth argument, that suspended sentences may have some role to play in sentencing in Pennsylvania. In one recent case, Commonwealth v. Button, 332 Pa.Super. 239 , 481 A.2d 342 (1984) (Spaeth, P.J. concurring), just such a role was illustrated and suggested by the trial judge. The suspension of sentence, on lesser charges to the life sentence imposed, was treated by the trial court as a procedural stay, pending resolution of the appeal on the major charges. It permits the trial court to retain jurisdiction to impose sentence on some counts in the event the more serious charge is dismissed on appeal, thus assuring the defendant will not emerge unpenalized. The suspended sentence, of course, would not be a final appealable order. I believe, although it is something of an additional burden, we must recognize suspended sentences, when realistically applicable in unusual situations, where lack of flexibility in the Sentencing Code requires it. The use of the term suspended sentence, following conviction and sentence to prison (suspending confinement), is a common expression of probation and has so been construed and as such is an appealable judgment, and entitles a defendant to all due process rights, Commonwealth v. Harrison, 264 Pa.Super. 62 , 398 A.2d 1057 (1979). The area which creates some confusion is suspended sentence upon conviction, without more, which most generally can be *56 construed to mean the alternative provided in the sentencing code, 42 Pa.C.S.A. § 9721(a)(2) a determination of guilt without further penalty, it too being a final sentence. It is frequently used by the trial court to emphasize that the defendant has been found guilty, and to make certain that he realizes that for whatever reasons deemed pertinent by the court, and despite the power to enter a custodial sentence, the court imposed no further restrictions. I believe, coming from the trial judge, the statement “I find you guilty as charged and hereby suspend sentence” carries a much heavier psychological and, therefore, deterrent impact than “I find you guilty and discharge you without further penalty” — which to the public (and defendant) implies a pat on the wrist. The legislature has recognized the utility of the suspended sentence in Offenses Against the Family, Chapter 43 of the Crimes Code. 18 Pa.C.S.A. § 4321, Willful separation or nonsupport provides: (a) Offense defined. — A person is guilty of a misdemean- or of the third degree ... (c) Effect of conviction and sentence on support orders.— (2) In any such case, the court may suspend sentence upon and during compliance by the defendant with any order for support as already made or as thereafter modified. If no such order shall have been made, then the court trying the defendant may make such order for the support by the defendant of his wife and children or either of them, which order shall be subject to modification by the court on cause shown, and may suspend sentence upon and during the compliance by defendant with such order upon entry of bond by defendant with surety approved by the court, conditioned on compliance with such order, (emphasis added) I do not believe the judgments of sentence for receiving stolen property and criminal trespass ought to be vacated. It would appear that the suspended sentence on that lesser charge (receiving stolen property) was imposed out of con *57 sideration of the sentence on the major charge (burglary). We may not presume that the trial judge intended no sentence under these circumstances, should the sentence as to burglary or theft be overturned on appeal. In Commonwealth v. Goldhammer, 507 Pa. 306 , 489 A.2d 1307 (1985), while the Supreme Court held it would constitute double jeopardy to remand for sentencing on a suspended sentence, when other charges on which sentences had been imposed had been vacated in prior appeals (such not being the case here, see Button, supra), it did not hold suspended sentences to be invalid per se. This illustrates the need to retain the concept of suspended sentence in those cases of merger or when a sentence would be considered excessive if imposed. Otherwise, to protect against a possible washout of all charges on appeal, it would be necessary for the trial court to sentence on all counts and charges with the attendant irrationality that would create. Admittedly, retaining the usage and practice of utilization of suspended sentence will create some difficulties, but to declare them illegal will produce more. This is a question which requires consideration by the Pennsylvania Criminal Rules Committee and the Sentencing Commission and one which should not be decided by judicial decision. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9639152. Public record. Not legal advice.