229 Pa. Super. 24 | Pa. Super. Ct. | 1974
Lead Opinion
Opinion by
This is an appeal from the sentence imposed by the Court of Common Pleas, Criminal Division, of Dauphin County after waiver of presentment to the Grand Jury and the entry of a plea of guilty by the Appellant to a
Appellant, by prior arrangement with an out-of-state source, received approximately six pounds of marijuana through air express for delivery to Appellant’s Harrisburg address. Subsequent to making such arrangements and prior to delivery Appellant apparently had a change of heart and notified his parole officer and the Harrisburg police of the forthcoming delivery. Approximately two minutes after delivery of this package, and before it was opened, Harrisburg police who had proper warrants arrived, confirmed the contents of the package and placed Appellant under arrest and properly advised Appellant of his rights.
Appellant waived arraignment and presentment to the Grand Jury and was represented by the Office of Public Defender of Dauphin County. The record contains an exceptionally full colloquy including a discussion of prior convictions and the possibility of a sentence of up to ten years. Appellant’s understanding was complete, with only his request for probation or leniency entered upon the record. No promises or plea bargaining are alleged.
The legislature alone can prescribe the sentences permissible under the penological system of the Commonwealth and the permissible sentence in this case
Since the sentence here falls within neither we will not disturb the sentence.
The Judgment of Sentence of the lower court is affirmed.
Concurrence Opinion
Concurring Opinion by
I concur with the Majority in affirming the judgment of sentence in the instant appeal. Appellant’s only contention here is that he received an excessive sentence under the circumstances. Under The Controlled Substance, Drug, Device and Cosmetic Act of 1972, April 14, P. L. 233, 35 P.S. §780, a sentence of two to five years for unlawful possession and possession with the intent to deliver and manufacture approximately six pounds of marijuana is entirely lawful, and being well under the maximum permissible was not so manifestly excessive as to constitute an unlawfully severe punishment.
In reviewing the facts of the case, however, it appears that there might have been insufficient evidence
Pennsylvania, as other states do, recognizes the possibility that an individual may, at some point, abandon the purpose of an intended crime, either at the preparation stage or prior to consummation of the substantive offense. See Commonwealth v. Holloway, 429 Pa. 344, 240 A. 2d 532 (1968). In some instances, a finding of abandonment will, nevertheless, result in a conviction on the crime of attempts, while under a different set of facts, the result may be exoneration. On the state of the record, it is impossible to determine the extent of appellant’s involvement. Appellant, despite alleged representations by his counsel that the case might be defended successfully, pleaded guilty to the charges against him. If error was committed or if an injustice was permitted to occur, such conclusion may not be gleaned from the scant record of the lower court, but must be determined in a collateral proceeding.
