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COMMONWEALTH v. EVANS (11/16/72)

SUPERIOR COURT OF PENNSYLVANIA


decided: November 16, 1972.

COMMONWEALTH
v.
EVANS, APPELLANT

Appeal from sentence of Court of Common Pleas of Berks County, No. 585 of 1971, in case of Commonwealth of Pennsylvania v. Kenneth Lee Evans.

COUNSEL

Robert P. Grim, Assistant Public Defender, for appellant.

Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 222 Pa. Super. Page 591]

This is a direct appeal from appellant's sentence of one-two years in prison following his plea of guilty to the charge of possessing marijuana. Appellant contends that the sentence was excessive.

The Controlled Substance, Drug, Device and Cosmetic Act*fn1 applies to all cases not final as of June 14, 1972, the effective date of the act. As this appeal was pending on that date, the judgment in the instant case was not then final. Commonwealth v. Simpson, 222 Pa. Superior Ct. 296, 294 A.2d 805 (1972). Thus, the said act applies herein.

The lower court record does not indicate the quantity of marijuana which the appellant was convicted of possessing. This court, therefore, cannot determine whether or not the one-two year sentence is in accord with the statute. Under the new act, the term of imprisonment which may be imposed is contingent upon the quantity of marijuana possessed. We remand this case to the Court of Common Pleas of Berks County with instructions that the quantity possessed be determined and a sentence be then imposed consistent with the precepts of the new act.

Disposition

Case remanded.


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