Appeal from order of Superior Court, Oct. T., 1972, No. 186, affirming judgment of sentence of Court of Common Pleas of Delaware County, Sept. T., 1971, No. 963, in case of Commonwealth of Pennsylvania v. Gene LaFunies Thomas.
Philip J. O'Malley, Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellant.
David E. Auerbach, Assistant Public Defender, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Nix and Mr. Justice Manderino join in this concurring opinion.
This is an appeal by the Commonwealth from the order of the Superior Court vacating the judgment of sentence entered against the defendant, Gene LaFunies Thomas, and remanding for a trial on the merits.
The defendant was arrested and charged with possession and sale of narcotics after selling two glassine bags of heroin to a State Police undercover agent. The case came to trial on October 14, 1971, before the Honorable Joseph W. deFuria, Jr., of the Delaware County
Court of Common Pleas. At that time the defendant, who had been represented by counsel throughout the proceedings, indicated his desire to change his plea from not guilty to guilty. After a complete, on-the-record examination of the defendant concerning the voluntariness and consequences of his plea of guilty, the court accepted the plea. Sentencing was deferred pending the preparation of a pre-sentence report. Thirty-five days later, on November 19, 1971, the defendant was brought before the court for sentencing. At that time counsel for the defendant urged the court to place the defendant on probation. Before imposing sentence the judge asked the defendant if there was anything he wanted say. The defendant answered affirmatively and made several statements about his present employment status and a previous conviction. Then the following discussion, which formed the basis for the Superior Court's order vacating the judgment of sentence and remanding for a trial on the merits, occurred: "Defendant: . . . As far as using drugs, I have never used drugs. I have never sold drugs. The Court: Now wait a minute, wait a minute. You pleaded guilty. Defendant: I did plead guilty, Your Honor, because I had no alternative really. Defense Counsel: There is no function in attacking the merits of the complaint [sic]. It has been entered. You cannot enter a plea of guilty and say well, really, I am not guilty. The Court: Let him say his piece. Have you anything further? Defendant: Well, I was just going to say that at 2303 [defendant's residence] I am buying [the house]. I have two fellows there, one of my nephews, and another fellow living with me. One of the fellows, I understand, was selling drugs. One case, I came home one night and they had a raid at the house. I was not aware that drugs were being sold from my house. That is all I have to say, Your Honor." At that point, without
considering the implications of the defendant's statement that he had never used or sold drugs, the trial judge sentenced him to five to ten years' imprisonment in accord with the applicable provisions of The Drug, Device and Cosmetic Act in force at the time.*fn1
On appeal to the Superior Court the defendant did not challenge the propriety of the entry or acceptance of the guilty plea. The defendant argued that the sentence imposed by the trial court was constitutionally invalid as cruel and unusual punishment and ...