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decided: January 26, 1978.



George W. Westervelt, Jr., Stroudsburgh, for appellant.

Allen E. Ertel, Dist. Atty., Robert F. Banks, First Asst. Dist. Atty., for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the consideration or decision of this case. Eagen, C. J., and Pomeroy, J., concur in the result.

Author: Nix

[ 476 Pa. Page 359]


On June 28, 1974, John A. Kulp, appellant herein, entered a plea of guilty to the charges of possession and delivery of a controlled substance, marijuana*fn1 and criminal conspiracy.*fn2 In the colloquy accompanying the entry of the pleas of guilty, Mr. Kulp testified that on one occasion, with the

[ 476 Pa. Page 360]

    assistance of a female friend, he had sold one ounce of marijuana to two undercover agents for the sum of twenty dollars. The sale was made while appellant was working at a Citgo Gas Station in Williamsport, Lycoming County. Upon appeal to the Superior Court, a majority of that court vacated the sentence and remanded for resentencing, but refused to allow the withdrawal of the pleas and the award of a new trial. Commonwealth v. Kulp, 235 Pa. Super. 397, 344 A.2d 602 (1975).*fn3 We granted allocatur and now reverse the order of the Superior Court.

[ 476 Pa. Page 361]

The critical issue raised is whether the post Ingram*fn4 colloquy in this case contained sufficient information for the hearing court to have been satisfied that the appellant was aware of the permissible range of sentences he was being exposed to by the entry of the pleas.*fn5 In Ingram, we attempted to delineate the perimeter of an adequate colloquy. In so doing, we cited with approval the Comment to Pennsylvania Rules of Criminal Procedure 319(a).*fn6 Commonwealth Page 361} v. Ingram, 455 Pa. 198, 204-5, n. 5, 316 A.2d 77, 81, n. 5 (1974). The cited comment specifically queried: "Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?". This question was framed recognizing that the decision to plead guilty to a charge could not be accepted as being knowingly and intelligently entered without an assurance that the accused fully comprehended the maximum punishment that might be imposed for his conduct. This information is obviously an integral part of the knowledge that should be possessed by one who is called upon to make the difficult decision whether to surrender his right to trial and to place himself at the mercy of the sentencing court. No civilized society could tolerate the waiver of such basic rights from one who was unaware of or misinformed as to such a critical fact.

The only part of the colloquy that addresses this subject is the following question and answer:

Q. [By the court to defendant] Do you understand what the sentences could be?

A. Yes.

The blatant inadequacy of this inquiry is so obvious that its failings need not be expounded upon. To suggest that the foregoing inquiry by the court and the response elicited was sufficient to satisfy the court that the accused fully and accurately understood the punishment he might receive for the charges to which he entered the plea, would render the entire procedure a formality without substance.

The Commonwealth asserts that this Court gave its imprimatur to this portion of the colloquy in our decision in Commonwealth v. Vaughn, 459 Pa. 35, 326 A.2d 393 (1974). The reliance upon Vaughn is obviously misplaced. In Vaughn, we quoted a small portion of a lengthy plea colloquy merely to demonstrate that trial counsel in that case had not improperly advised his client in a particular respect. Here the question is whether or not there was a legitimate basis for the court to conclude that the accused possessed the requisite knowledge pertaining to the permissible range of

[ 476 Pa. Page 362]

    sentences for the crimes involved. As stated, the acceptance of a defendant's affirmation without more would frustrate the purpose sought to be achieved by requiring an on-the-record colloquy prior to the entry of a plea. The reasoning urged by the Commonwealth presupposes the very information that the colloquy seeks to assure that the accused possesses.

Lastly, the Commonwealth urges in the event that we find the colloquy inadequate, that we remand for an evidentiary hearing to afford the Commonwealth the opportunity to establish, by testimony, that appellant possessed the requisite knowledge when he entered his pleas. In support of this argument, the Commonwealth relies on the language of this Court in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). Therein we reasoned:

Although we cannot presume a voluntary waiver of any constitutional right from a silent record, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d 521 (1972), the issues here are whether a waiver can be found and upheld where it appears on the record in a subsequent hearing and the sufficiency of the subsequent colloquy in proving a knowing and intelligent waiver.

The appellant argues that we should make a per se prophylactic rule reversing convictions for failure to comply with Rule 1101, despite the fact that a subsequent full and fair hearing proved the waiver of the constitutional right was knowing and intelligent. When we make rules for criminal proceedings we do so in order to protect the rights of individual and therefore we expect strict compliance with those rules. However, a prophylactic exclusionary rule is applied only in extreme cases where all other attempts to secure compliance have proven unsuccessful. See generally Mapp v. Ohio, 367 U.S. 643, 651-652, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In this area there has been no showing of widespread flagrant disregard to

[ 476 Pa. Page 363]

    justify formulation of such a rule at this time." Id. 454 Pa. at 372, 312 A.2d at 599-600.*fn7 (footnote omitted).

In asserting its contention that remand is the appropriate remedy, the Commonwealth ignores that Ingram was decided after Williams. While Ingram has been held not to have changed the requirement as to the content of the colloquy, Commonwealth v. Schork, 467 Pa. 248, 356 A.2d 355 (1976); Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976), it unquestionably stressed the mandate of the rule that there be an on-the-record colloquy :

"We reiterate here what was said in Ingram, supra, 455 Pa. at 204-205, 316 A.2d at 81: 'Adherence to [the guidelines set out in the Comments to Rule 319(a)] will serve to protect the rights of defendants while simultaneously facilitating appellate review.' Failure to satisfy these minimal requirements will result in reversal." Commonwealth v. Dilbeck, 466 Pa. 543, 547, 353 A.2d 824, 827 (1976). (citations omitted).

For pleas entered after our decision in Ingram, there can be no excuse for a hearing court to have failed to recognize the need of an adequate on-the-record colloquy reflecting a knowledgeable and intelligent waiver. The factors that influenced us in Williams to relax the mandate of Rule 1101 are obviously not present here. To permit remand at this late date to afford the Commonwealth an opportunity to establish an effective waiver would undermine the basic rationale of Rule 319(a) and condone a flagrant unexplained and inexcusable disregard of our procedural rules.

The Order of the Superior Court is Reversed and the Judgment of Sentences are Reversed and the matter is Remanded for Trial.

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