*1 397 though a closer necessary observation of the vehicle was may obtain its serial number and such conduct have Gray, see United search, constituted a States 484 F.2d (6th denied, cert. Cir. 1973), U.S. we find that the search was reasonable under the circum appearance stripped many stances. The of the vehicle, undamaged parts, highly suspicious justi was of a nature fying investigation by trooper. further See United Winston, States v. 1974). Supp. (E.D. 373 F. Mich. conclusion, In Trooper we hold that examination Bard’s body of the different shop vehicles he found proper plain under view doctrine.8
Judgment affirmed. JJ., concur the result. Spaeth,
Hoffman suppression hearing may trial but considered trial to determine whether evidence obtained unconsti- means). tutional argument by appellant regarding plain No is made discovery
view of the absence of serial numbers on the 1970 Ford by Trooper during Maverick Bard the March 29 search. Conse- quently, opinion. not be discussed in issue will Kulp, Appellant.
Argued March 19, 1975. Before Watkins, J., P. Jacobs, Hoffman, Cercone, Voort, Price, der Van and Spaeth, JJ.
George Westervelt, Jr., Philip, W. with him Martin H. Royle Cohen, and Tiektin, appellant. for Ertel, Attorney, Commonwealth, Allen E. District appellee.
Opinion J., September Jacobs, 22, 1975: pleaded guilty charges herein delivery of a substance1 controlled and criminal con- Act, April 1. Controlled Substance Act of §13, amended, (a) (30) (Supp. 1975-76). 35 P.S. §780-113 spiracy.2 He was sentenced to a term of six months years imprisonment Facility two at the State Correctional at Rockview and a fine of two hundred dollars. In this appeal challenges direct validity guilty plea he his propriety and the possibly utilized information sentencing. at the time of For reasons reject stated hereinafter appellant’s we first contention resentencing light and remand for of his second. Appellant’s contention, upon first based Common wealth v. 455 Pa. Ingram, guilty plea knowingly intelligently was not apprised he because of the nature of
charges against
e.g.,
Camp
him.
v.
See,
Commonwealth
bell,
(1973)
;
“Q. you Why plead do guilty? want to wrong. “A. Because I realize I did “Q. you What did do? marijuana
“A. I sold some to two Undercover Agents.
“Q. On one occasion or more than one? “A. One.
“Q. you What amount and much how did receive ? “A. I received it and was an ounce. $20.00 “Q. Conspiracy charge? gas
“A. Carol had to deliver it to me at the station. brought I it at her it house and she to the gas working. station where I was “Q. accept plea.” I will It specific is clear that was aware acts which constituted the crimes for which he was 334, §1, 2. Act of December 18 Pa.C.S. No. §903 charged. re- Ingram, supra, does not quire explain the trial the offenses the nature of already to a defendant such an who evidences understanding. Indeed, Ingram stated, “that Court adequate 319(a) on the record under Rule must include a demonstration ‘that the under- defendant ” charges. stands the nature of the . . Id. at Ingram A.2d at 80. require does not demonstration this only to issue from the court.
Appellant’s second is that contention improperly unproven upon relied information determining appellant’s The record reveals following colloquy: “ say stupid [Defense eedless to it was a counsel]: [N]
thing do, think he I certainly realizes particular point, think but I even significant more is the fact there reason, believe, is no to doubt place pretty, that the sale took place pretty much took [sic], Kulp Mr. described it. “By the particular Court: This but he did, sale
dealing traffic, keep must which I in mind. “ [by defense : I don’t think there counsel]
indication of that.
“By the Except Court: he did make a and there sale no indication it is the sale he
ever made. .. *4 “[By the Attorney] District : The Commonwealth point one, out factors,
would several that the Defendant sale gas station, major, at this which is a this, during period hap- time major drug pened to be area dis- City. tribution in the 401 “By might to Court Defendant: state The Court week, or last two three
sales from the station. . same .” recognized This Court has trial before that “[t]he judge sentence,” imposing broad in has discretion Com 32, 34, 332 Riggins, Superior monwealth v. 232 Pa. Ct. judge may A.2d 522 (1974), and that a “consider imposing sentence, information in not that would neces sarily determining guilt.” in be admissible Common Johnson, Superior wealth v. 235 Pa. Ct. Shoemaker, (1975). See Commonwealth v. Superior The Ct. A.2d 342
colloquy in case, however, the instant reveals judge appellant “dealing trial in believed the traffic” which this interprets Court volume sales of illicit mean drugs. only support assumption for such is found single in the information that the location of the sale has previous been situs for no sales. There is indication any way previous inwas in involved activity. sentencing information used goes beyond permitted case instant far cases such Tisdale, Superior as Commonwealth v. Ct. 334 A.2d (1975) and Commonwealth v. Shoe supra. maker, such, As the case must be remanded resentencing.
Judgment resentencing reversed and remanded for opinion. consistent with this
Dissenting Opinion J.: Hoffman, Appellant guilty plea contends that his know- ingly understandingly Further, made.
claims considered certain un- allegations proven of other, more serious crimes deter- mining appellant’s, imprisonment. term of straight- appellant’s
The facts that led are arrest 1, 1974, appellant approximately forward. On March sold *5 402 agent, narcotics marijuana undercover to an
one ounce while the sale Appellant Trooper Mazeikas. Walter Washington on Citgo working Station at the Gas he was Lycoming Williamsport, Railway Street Boulevard and County. delivery of charged with appellant was
Subsequently, sub- possession a controlled substance,1 a controlled appeared conspiracy.3 Appellant stance,2 criminal and guilty all to Judge pled Geeevy and before President charges deferred 28, The court on June 1974. 1974, ap- August 26, report.
pending pre-sentence On was sentenced again appeared pellant the court before imprisonment and years’ months’ to two to a term of six pay of two hundred a fine dollars. colloquy that Initially, contends not accompanied plea guilty demonstrate did his right trial be- intelligent knowing waiver sufficiently apprised of the nature appellant was not cause charges against relies him. 203-04, A. 2d 198, 316 Ingram, January 24, order to 1974: “In 77, (1974), decided on possesses such understand- demonstrate that a defendant just he than certainly be told more ing, he must example. charged robbery, for with murder or has been meaning clearly some connote While terms meaning always layman, embrace basic does not case, legal this were not the elements of the crime. If jury on such no need for instructions to there would be average certainly, defendant points, for cannot an Substance, Drug, Device and Controlled Cosmetic Uniform. 64, effective, Act, 14, 1972, §13, April imd. Act of P.L. No. effective; 263, §1, Oct. P.L. No. imd. amended (a) (30). P.S. §780-113 Drug, Substance, Device and Cosmetic Controlled 2. Uniform (a)
Act, supra, P.S. §780-113 Code, December No. Act of 3. Crimes enactment; 18 Pa. C.S. date §903. six months effective from presumed average juror. to understand more Thus, for an examination to demonstrate defendant’s understanding of the charge, record must disclose that the elements of the crime or crimes were out- lined understandable terms.” simply in the instant case does com- *6 port Ingram-. Kulp with the mandate of “Mr. has been charged your follows, Honor, charged he has been with about, or on the March, 1974, 1st of ... with ‘1st Delivery feloniously Count: of Controlled Substance: deliver, possess manufacture, or with intent to manu- facture deliver, substance, or a to-wit, controlled a sub- containing stance Tetrahydrdcannabinols; 2nd Count: Unlawfully Possession have in Controlled substance: possession substance, a controlled to-wit, substance containing Tetrahydrocannabinols; Conspir- 3rd Count: acy: Agree engage with another to in conduct with [sic] attempt constitutes crime or to com- an or solicitation mit crime; Co-conspirator known female white —a Reynolds.” Carol
“By the Court Defendant: “Q. you, How are old Sir?
“A. 24.
“Q. you Where do reside? “A. I reside at 89 Deerfield Penna. Drive, Pottsville, “Q. you going Lycoming Were to school here
County? No, Sir, working “A. I was for PennDot as a Drafts- man. “Q. you Have ever been in criminal trouble before? No, “A. Sir.
“Q. you your rights? Mr. Felix advised all has Yes, “A. Sir.
“Q. you You understand what are with? Yes, “A. Sir.
“Q. You understand what the sentence be? could “A. Yes. you guilty could plead
“Q. you if do not You realize Jury? Jury the Court without have trial or “A. Yes. proven
“Q. presumed innocent until You would be guilty beyond doubt? a reasonable “A. Yes. you and
“Q. your to face would have That accusers you subject to cross-exami- testify against nation ?
“A. Yes. “Q. plead guilty? Why you do want wrong. “A. Because I realize I did “Q. you What did do? Agents. marijuana
“A. I to two Undercover sold some “Q. one? occasion more than On one or “A. One. you
“Q. receive? much did What amount and how ounce. and it was “A. received $20.00 *7 “Q. charge? Conspiracy of the gas the station. it to me at “A. Carol had to deliver the brought it to I it at and she her house working. gas station where I was “Q. plea.” accept I the will subsequent to the deci- Appellant’s plea entered was yet I review the Ingram. in And often sion . record . where “the . case, in the instant I fail to find or crimes of the crime the elements disclose [d] That terms.” were outlined understandable in him, de hors appellant attorney informed stated that his rights The thrust record, irrelevant. of his is Ingram guarantee full advisement is to an accused facilitating ap- simultaneously rights his or her “while review,” pellate A. 2d at 205, 316 at with the In addition to failure to conform the court’s that the specific Ingram, contends mandate deter- sentencing unproven relied information During course mining appellant’s sentence. following discus- August sentencing hearing, 26, sion occurred: say it was . . : . [N]eedless
“[Defense counsel] certainly stupid realizes thing think he and I do, signifi- even more particular think at but I point, this to doubt reason, believe, I cant fact there is no is the place pretty took place as such pretty, that the sale took Kulp it. much as Mr. described did, he was particular but “By sale This the Court: keep in mind. dealing traffic, which must “ any in- [By think there I don’t defense : counsel] dication of that. there Except make a sale
“By the he did Court: ever made. . . no indication it sale he is the . “[By Attorney] District The Commonwealth : one, the Defendant point factors, would several out major, at gas station, which is a made the sale this major during period happened to be this, time drug City. area distribution might “By . The Court the Court to Defendant: .. week, from state that or three last sales I had two same station . .” Tucker,
In United States v. U.S. Supreme the sen- United held that because States Court tencing judge prior felony convictions considered three petitioner subsequently were overruled, In the instant entitled to reconsideration of his sentence. case, for which court considered offenses may occurred, indicted, not have egre- may appellant. involved Such which not have gious disregard in a process cannot be tolerated for due *8 system. fair
Thus I remand for would retrial. dissenting opinion.
Spaeth,
joins in
J.,
J.:
by
Opinion
Dissenting
Concurring
Price,
pleaded
Kulp
A.
appellant
28, 1974,
John
On June
con-
delivery2
aof
charges
guilty
possession1 and
of
lower
conspiracy.3
and of criminal
trolled substance
plus the cost
fine of
him a
sentenced
$200.00
court
not less
imprisonment
prosecution and to a term of
appeal,
years.
thisOn
than six months nor more
two
be-
plea
guilty
invalid
appellant
contends that his
did
court
colloquy
the lower
conducted
cause
charges
adequately
appellant understood
reveal
plea
argues
appellant
against
Alternatively,
him.
appel-
reveal
did not
was invalid because
jury trial.
ingredients of a
aware of the essential
lant was
the informa-
propriety of
Finally,
contests
imposing
judge in
tion considered
the trial
record
that the
majority’s
conclusion
I concur in
nature
clearly
understood
reveals
appellant’s
charges against
I find
addition,
him. In
argument
merit.
alternative
to be without
Commonwealth
requires,
Ingram,
hearing:
“By (attorney appellant): Felix Mr. for the significant . . but think more the fact there even took the sale believe, doubt reason, I is no as Mr. pretty much place place pretty, such took Kulp described it.
By The Court: traffic, dealing in he did, but particular sale
This keep in mind. which I must By Mr. Felix: that. there indication
I don’t think *10 By The Court: no indication there is
Except he make sale and did only it is sale he ever made.
By Mr. Felix: others.
There is no indication there By The Court: it at Possession
The Court takes a different look does Sale. Court, for more serious will make it much
[T]his young men feel that these Sales than Possession. We only gain, once, it was that their if it is for own happy differently. once, I will be we must look at these say.” anything you to hear have [NT 7-8]. in sen- Appellant argues court erred that the lower tencing assuming other while that he agree general it While, proposition, I that sales. as a a defen- error would be for a lower court to assume past, in the dant committed undiscovered offenses has follow, for the reasons am unconvinced transpired in is what the case before us. compelled however, to reiterate
Preliminarily, I feel judge discretion the trial to im broad is vested in Supe Riggins, 232 Pa. pose Commonwealth v. sentence. Pennsylvania (1974). 32, A.2d trial rior Ct. 332 521 imposing judges may sentence consider information determining guilt. not be admissible Com which would Johnson, Superior 185, A.2d monwealth 340 v. 235 Pa. Ct. imposed will not (1975). sentence . . 515 “[T]he
409 appellate reviewed an unless it exceeds court, statutorily prescribed manifestly limits or excessive is so punishment.” to constitute too severe a Wrona, (1971) ; 442 201, 206, Pa. 78, A.2d 80-81 275 Johnson, Superior 185, 190, Commonwealth v. Pa. 235 Ct. Shoemaker, (1975) ; 340 A.2d 518 Commonwealth v. Superior 226 Pa. Ct. A.2d 348 313 aff’d, (1975). The above rules de- are maxims unreasonable signed prevent appellate unfairly imposed of an review contrary, appellate On the must have courts standard which to review an exercise discretion by a lower provide court. The with above rules us is, undoubtedly, standard. weighted The standard in favor of upholding judge’s This, trial too, action. is based in reason, judge “sees trial the defendant hears witnesses.” Downer, Superior Ct. ad- 53 A.2d In dition, likely the trial more is far to be familiar problems with the needs, its and its than is community, appellate Finally, appellate court. are inclined courts *11 place great to judges day-to- reliance trial on because the day workings judicial system inevitably depend of the competence. on their judges provide the basis Trial judicial doubt, which on the structure stands. When presumption in- their actions are correct must dulged; any judicial other attitude chaos. invites slightly context, Judge elo-
In different Woodside quently they “[jjudges human, that, observed are but specially are also to on the evidence. trained decide cases They dangers are and conscious of facts the irrelevant zealously guard against being influenced themselves Furthermore, facts not from obtained the evidence. Supreme Court of Penn- 4. Shoemaker was the affirmed sylvania preserve the the issue because had failed appeal Thus, the appellate reached on review. the court never merits. to obtain
just
impossible
cases
in some notorious
as it is
crime,
jurors
nothing
the defendant
who know
knowledge
impossible
all
judge
so
it
to be free of
is
for a
are
concerning
We
crimes and defendants.
notorious
on the
judge
case
decided the
satisfied
trial
protected
evidence,
zealously
he
the defendant’s
prejudiced
influenced
or
interests and
he was not
Berkery,
decision.
. .”
Superior
(1963), cert.
629-30,
Ct.
denied,
In lower court did am convinced that the imposing sentence. improper consider evidence appellant was I consider itself: Initially, the sentence imprison- years months two sentenced to term six permissible years up im- is to five sentence ment. prisonment delivery a controlled conviction for years permissible up substance.5 The sentence to seven imprisonment conspiracy.6 on the conviction for criminal limits, statutory sentence was well within was not so an abuse excessive dr severe as constitute of discretion. my
Secondly, leads me to record consideration judge conclude that the remark of trial isolated does judge improper not indicate that informa- considered An overall tion. review of the record reveals aspects trial two the case in concerned with determining First, of a he felt that the sale con- culpable then trolled was more offense mere substance (f) (2), April 14, 1972, P.L. 5. Act of No. §13 1975-76). (35 (f) (2)) (Supp. amended P.S. §780-113 (18 Act of Dec. Pa.C.S. No. §1 grade (b)), places conspiracy the most in the same serious §905 object §106(b) conspiracy. (5) which 18 Pa.C.S. offense “ specification *12 felony, crime to be a without that declared [a] states Thus, conspiracy degree degree.” a deliver is of the third degree. felony the third Pa.C.S. a controlled substance is years on imposes more than seven con- §1103(3) a of not sentence degree. of the third victions of felonies light possession. in This is a reasonable consideration greater penalties for a legislature’s the authorization Second, judge the possession. felt sale than for that of sen- relevant to the determination situs of the sale was judge knew, before him at from other cases tence. gasoline occurred, time, place that where sale drug pur- marketplace and station, for sellers was a local Though may be admissible this evidence not chasers. determining prove it sen- would be admissible guilt, Furthermore, it a relevant consid- believe that tence. market can indi- A sale occurs at a known eration. greater than does a sale criminal involvement cate judge, place And with welfare takes elsewhere. may community mind, should consider such and his sentencing, in other matters. as well as factors in appellant judge It was is true that stated traffic,” “dealing when there was no told by appellant, judge any evidence of other sales made there no indication stated “he did make a sale and that, only However, it is the sale he ever made.” I do necessarily believe that indicates this isolated comment judge that the with the belief in mind sentenced Appellant’s that he other counsel rebutted sales. judge’s pointing was no statement, out that there indication that ever made other sales. judge apparently accepted stating, “if it is rebuttal, only once, judge it However, went once. . . .” repeat on to belief a more offense his sale is serious possession. Appellant’s father then to the stated court that he had never had indications that other drugs. Thus, appellant his son was connected with judge’s able to rebut statement. Cf. Shoemaker, supra.
Considering together the entire record, with the actual imposed, sentence I do not conclude that the trial imposition erred consideration judgment I would affirm the of the lower court.