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COMMONWEALTH PENNSYLVANIA v. HAROLD SMITH (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
HAROLD SMITH, APPELLANT



No. 846 October Term 1976, Appeal from Judgment of Sentence of the Hon. Leonard Sugerman, Judge of the Court of Common Pleas of the 15th Judicial District (Chester County) in Criminal Proceedings Nos. 1304 and 1305 C 1975.

COUNSEL

Michael S. Barranco, Assistant Public Defender, Westtown, for appellant.

John H. Wollman, West Chester, submitted a brief for Commonwealth, appellee.

Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Watkins, President Judge, and Jacobs, Hoffman, Price and Van der Voort, JJ., concur in the result.

Author: Spaeth

[ 250 Pa. Super. Page 538]

The question presented by this appeal is whether appellant's counsel at the sentencing hearing was ineffective.

1

The facts are relatively simple. Appellant pleaded guilty to two counts of sale of heroin. At the sentencing hearing

[ 250 Pa. Super. Page 539]

    his counsel argued as a mitigating circumstance that appellant was not involved in drug trafficking but made the sales only to assist a young woman; according to counsel, the young woman was addicted and suicidal, so appellant sold her the heroin, at cost, to tide her over and on the condition that she seek help at a drug treatment center. In reply, the District Attorney said: "Your Honor, I think in all candor to the Court, I would point out to you, this man became the object of a drug investigation because we felt he was part of the Philadelphia connection of drugs into the Coatesville area. That is the reason he was a target." N.T. Sentencing Hearing at 10. The sentencing judge accepted this suggestion that appellant was a drug dealer. Thus, in response to the District Attorney's statement, the judge said: "This couldn't have been a casual venture into Philly to pick up two bundles of heroin. It has to involve some kind of connection. Yes. Go ahead." Id. Also, after imposing the sentence, which was three to fifteen years, the judge said: "We'll stop that heroin trade in some fashion . . . . I trust the word will go out, I'm going to steadily increase those sentences, as the heroin trade increases in the City of Coatesville; and, the next one will be seven-and-a-half to fifteen years in this courtroom." Id. at 12-13.

2

Since sentencing is a critical stage of prosecution, appellant was entitled to the effective assistance of counsel at the sentencing hearing. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). Moreover, since appellant's counsel on this appeal is different from his counsel at the sentencing hearing, the question whether appellant received the effective assistance ...


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