Appeal from judgment of sentence of Court of Common Pleas of Dauphin County, No. 409 of 1972, in case of Commonwealth of Pennsylvania v. Walter C. Rollins.
Smith B. Gephart, Assistant Public Defender, for appellant.
Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J. Spaulding, J., dissents.
[ 224 Pa. Super. Page 468]
Appellant asks that his sentence be set aside on the ground that in determining the sentence the lower court took into consideration matters not of record.
The testimony at trial was that appellant sold two bags of heroin to an undercover agent. The jury returned a verdict of guilty of unlawful sale of narcotic drugs, and appellant chose not to file any motion challenging the verdict. After a colloquy during which various facts about appellant were revealed, including his age, education, marital status, employment, union record, and that he had been convicted in 1947 of larceny of a suitcase, the following ensued: "Mr. Morgan [Assistant District Attorney]: Your Honor, in this kind of case, the last few people that have been here have talked about their plight and the fact that they
[ 224 Pa. Super. Page 469]
couldn't get employment and they couldn't do anything else. Now this man comes and says because he is employed he is less of an offender for selling drugs. There has to be some reason for people to sell drugs. If a person sells it on the street because he needs to sell it, that's one thing, if he sells it on the street and is employed the whole time, that's another. I think this is a serious case because of that, not because he has a good record, but because he didn't need to be selling drugs. Mr. Gephart [Assistant Public Defender]: The District Attorney lost me on that. I don't think it's any greater offense to be steadily employed and sell drugs than it is not to be steadily employed. That's our position, Your Honor. I would ask the Court to consider a jail sentence of county time. The Court: Oh, my goodness. Mr. Rollins even knows better than that. Actually, he was a fairly sizeable seller, and I think he knows it."
Thereupon the court imposed sentence of imprisonment in a State correctional institution for not less than five years nor more than twelve years, which was within the statutory limits, The Drug, Device and Cosmetic Act of Sept. 26, 1961, P. L. 1664 § 20(d), 35 P.S. § 780-20(d), after which defense counsel stated: "Mr. Gephart: Your Honor, I would like to say for the record that the Court indicated that Mr. Rollins was a very sizeable seller. To my knowledge, there is nothing in the record to indicate that Mr. Rollins is a sizeable seller. I can only assume then that the Court has information that the defense lawyer does not have. The Court: I think that the evidence, what was found in his room -- Mr. Gephart: No, Your Honor, there is no evidence of what was found in his room. The Court: All right."
The court was incorrect in its belief that evidence had been introduced that appellant was a "fairly sizeable seller". There was an offer by the Commonwealth
[ 224 Pa. Super. Page 470]
to show through cross-examination of appellant that there were "all kinds of paraphernalia involved in drugs" in his hotel room, including "a scale and other material"; however, an ...