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COMMONWEALTH v. KULP (09/22/75)

decided: September 22, 1975.

COMMONWEALTH
v.
KULP, APPELLANT



Appeal from judgment of Court of Common Pleas of Lycoming County, No. 74-10, 422, in case of Commonwealth of Pennsylvania v. John A. Kulp.

COUNSEL

George W. Westervelt, Jr., with him Martin H. Philip, and Cohen, Royle and Ticktin, for appellant.

Allen E. Ertel, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion. Concurring and Dissenting Opinion by Price, J.

Author: Jacobs

[ 235 Pa. Super. Page 398]

The appellant herein pleaded guilty to charges of delivery of a controlled substance*fn1 and criminal conspiracy.*fn2

[ 235 Pa. Super. Page 399]

He was sentenced to a term of six months to two years imprisonment at the State Correctional Facility at Rockview and a fine of two hundred dollars. In this direct appeal he challenges the validity of his guilty plea and the propriety of the information possibly utilized by the judge at the time of sentencing. For the reasons stated hereinafter we reject appellant's first contention and remand for resentencing in light of his second.

Appellant's first contention, based upon Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974), is that his guilty plea was not knowingly and intelligently made because he was not apprised of the nature of the charges against him. See, e.g., Commonwealth v. Campbell, 451 Pa. 465, 304 A.2d 121 (1973); Commonwealth v. Maddox, 450 Pa. 406, 300 A.2d 503 (1973). This argument is without merit. After the indictments were read, the court conducted a colloquy which included, inter alia, the following exchange.

"Q. Why do you want to plead guilty?

"A. Because I realize I did wrong.

"Q. What did you do?

"A. I sold some marijuana to two Undercover Agents.

"Q. On one occasion or more than one?

"A. One.

"Q. What amount and how much did you receive?

"A. I received $20.00 and it was an ounce.

"Q. The Conspiracy of the charge?

"A. Carol had to deliver it to me at the gas station. I had it at her house and she brought it to the gas station where I was working.

"Q. I will accept the plea."

It is clear that the appellant was aware of his specific acts which constituted the crimes for which he was

[ 235 Pa. Super. Page 400]

    charged. Commonwealth v. Ingram, supra, does not require the trial judge to explain the nature of the offenses charged to a defendant who already evidences such an understanding. Indeed, the Court in Ingram stated, "that an adequate on the record colloquy under Rule 319(a) must include a demonstration 'that the defendant understands the nature of the charges. . . .'" Id. at 203, 316 A.2d at 80. Ingram does not require this demonstration to issue only from the court.

Appellant's second contention is that the sentencing court improperly relied upon unproven information in determining appellant's sentence. The record reveals the following colloquy:

"[Defense counsel]: [N]eedless to say it was a stupid thing to do, and I think he realizes that certainly at this particular point, but I think even more significant is the fact there is no reason, I believe, to doubt that the sale took place pretty, as such took place pretty much as Mr. Kulp described it. [sic].

"By the Court: This particular sale did, but he was dealing in traffic, which I must keep in mind.

"[by defense counsel]: I don't think there is any indication of that.

"By the Court: Except he did make a sale and there is no indication it is the only sale he ever made. . . .

"[By the District Attorney]: The Commonwealth would point out several factors, one, that the Defendant made the sale at this gas station, which is a major, at this, during this period of time happened to be a major area of drug distribution in the City.

[ 235 Pa. Super. Page 401]

" By the Court to Defendant: The Court might state that I had two or three last week, sales from the same station. . . ."

This Court has recognized before that "[t]he trial judge has broad discretion in imposing sentence," Commonwealth v. Riggins, 232 Pa. Superior Ct. 32, 34, 332 A.2d 521, 522 (1974), and that a judge may "consider information in imposing sentence, that would not necessarily be admissible in determining guilt." Commonwealth v. Johnson, 235 Pa. Superior Ct. 185, 190, 340 A.2d 515, 517 (1975). See Commonwealth v. Shoemaker, 226 Pa. Superior Ct. 203, 313 A.2d 342 (1973). The colloquy in the instant case, however, reveals that the trial judge believed the appellant to be "dealing in traffic" which this Court interprets to mean volume sales of illicit drugs. The only support for such an assumption is found in the information that the location of the single sale has been the situs for previous sales. There is no indication that appellant was in any way involved in such previous activity. The information used by the sentencing judge in the instant case goes far beyond that permitted in cases such as Commonwealth v. Tisdale, 233 Pa. Superior Ct. 77, 334 A.2d 722 (1975) and Commonwealth v. Shoemaker, supra. As such, the case must be remanded for resentencing.

Judgment reversed and remanded for resentencing consistent with this opinion.

Disposition

Judgment reversed and case remanded for ...


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