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COMMONWEALTH v. MARTIN ET AL. (12/11/73)

decided: December 11, 1973.

COMMONWEALTH
v.
MARTIN ET AL., APPELLANTS



Appeals from judgments of sentence of Court of Common Pleas of Lancaster County, Nos. 858, 1341, 1343, 1347, 1324 to 1328, 1331, 1332, 1340, 1344 to 1346, 1348, 1072, 1073, 1356 and 1778 of 1972, respectively, in case of Commonwealth of Pennsylvania v. Harry Karl Martin, Same v. James Evans Keyes, Same v. Hector Burgos, Same v. Rafael Nieves, Same v. Warren Canoles, Same v. Dale Troop.

COUNSEL

Thomas E. Harting, William C. Haynes, Richard C. Shay, and Theodore S. Danforth, Public Defender, for appellants.

Michael H. Ranck, James R. Leonard, Jr., Louise G. Herr, George T. Brubaker, and Andrew F. Lucarelli, Assistant District Attorneys, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J., In Support of Reversal. Hoffman and Cercone, JJ., concur.

Author: Per Curiam

[ 226 Pa. Super. Page 183]

The six judges who heard and decided these appeals being equally divided, the judgments of sentence are affirmed.

Disposition

Judgments of sentence affirmed.

Opinion by Spaeth, J., In Support of Reversal:

Appellants contend that they were all six illegally sentenced in that as to each of them sentence was imposed without any reference to their individual characteristics, but rather in accordance with a policy agreed upon in advance by the three judges of the court below that any defendant who pleaded guilty to or was convicted of selling heroin should receive a sentence of not less than three nor more than ten years, consecutive on each count or bill if more than one sale were proved.*fn1

During the months of April to June, 1972, each of appellants made one or more sales of various quantities of heroin to undercover State police officers. Appellants were arrested and arraigned on July 19, 1972, pursuant to warrants that had been issued on July 17.*fn2 Each appellant was brought to trial and sentenced separately.

[ 226 Pa. Super. Page 184]

Harry Karl Martin appeared before The Honorable Wilson Bucher on September 21, 1972, and pleaded guilty to three sales of heroin. The undercover officers testified before sentencing that the three transactions consisted of sales of ten bags for $80, five for $50, and four for an undetermined price. The transcript of the sentencing hearing consists of fourteen pages.*fn3

The recitation of the facts of the sales occupies two pages. Three pages deal with the voluntariness of the guilty plea and waiver of right to trial by jury. There follows a brief summary by defense counsel of appellant's past: that appellant had no prior record; that he had gone to the first semester of college and had to drop out for financial reasons; that he served a year in Viet Nam and received an honorable discharge; and that when he returned home he found that his friends were using heroin. Counsel also said that appellant used heroin himself: "The Court: He is not a drug addict? Mr. Shay [defense counsel]: I don't know if he can make that claim or not." The district attorney asserted that appellant was a known supplier and not an addict. He buttressed this with a remark about the expensive type of car appellant drove (although defense counsel had pointed out that appellant held a full-time job at the time of his arrest). Appellant's mother was allowed to enter a plea for mercy. She said that appellant had always been a good boy and recounted the jobs he had held since he was twelve. At 10:00 a.m., the court recessed until 2:00.*fn4 When court reconvened,

[ 226 Pa. Super. Page 185]

Judge Bucher, after stating that he was applying The Drug, Device and Cosmetic Act, Act of September 26, 1961, P. L. 1664, as amended August 24, 1963, §§ 1, 2, 35 P.S. § 780-20(d),*fn5 imposed sentence: a $2,500 fine and three to ten years imprisonment for each of the three sales, to be served consecutively, i.e., $7,500 and 9 to 30 years.

Appellant Rafael Nieves was tried before The Honorable W. G. Johnstone, Jr., sitting with a jury, and was found guilty on September 25, 1972. At the outset of the trial defense counsel (Mr. Shay again) made a motion for a change of venue: "I feel that the Court has established the maximum sentencing policy and that this Defendant could not get a sentence in relation to the circumstances." The motion was denied; it was again made and denied at the end of the trial.

The transcript of the sentencing hearing covers five typewritten pages. Defense counsel first argued that in two cases the previous week the court had imposed consecutive sentences for each sale; two of the five pages thus are consumed in discussion of ...


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