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COMMONWEALTH PENNSYLVANIA v. KAY ANN SPAHN (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
KAY ANN SPAHN, APPELLANT



No. 3 April Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Blair County, at No. 387 of 1976.

COUNSEL

John Woodcock, Jr., Public Defender, Hollidaysburg, for appellant.

J. Michael Dorezas, Assistant District Attorney, and Amos Davis, Altoona, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files an opinion in support of affirmance in which Cercone and Price, JJ., join. Spaeth, J., files an opinion in support of reversal in which Jacobs, President Judge, and Hoffman, J., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 255 Pa. Super. Page 158]

The six Judges who heard this appeal being equally divided, the judgment of sentence is affirmed.

[ 255 Pa. Super. Page 159]

VAN der VOORT, Judge, in support of affirmance.

At approximately 1:30 P.M., on January 10, 1976, the appellant, Kay Ann Spahn, entered the Blair County Prison to visit her brother who was a resident of the prison at that time. While visiting with her brother she furnished him 1.3 grams of Marijuana and two capsules containing dextro-amphetamines. Marijuana is classified as a Schedule I drug under the Drug, Device and Cosmetic Act, and dextro-amphetamine is classified as a Schedule II drug. Appellant was arrested at that time and charged with violating Section 5123 of the Crimes Code*fn1 and Section 13(a), Subsection 16 of the Drug, Device and Cosmetic Act.*fn2 Both charges were consolidated for trial under No. 387 of 1976.

On July 12, 1976, the appellant stood trial and following a colloquy with the judge pled guilty to the charges. The court did not feel it was necessary to have a pre-sentence report submitted and on that same day commenced sentencing the appellant to pay the costs of prosecution, pay a fine in the amount of $100 and undergo imprisonment for a term of not less than 11 months nor more than 23 months on the charge of violating Section 5123. On the charge of violating the Drug, Device and Cosmetic Act, appellant was sentenced to pay the costs of prosecution and further sentence was suspended. A direct appeal to this Court was taken from the judgment of sentence without the filing of any post-trial motions.

On appeal, appellant argues that her plea of guilty to the charges was not voluntarily and understandingly made. In addition to that issue, appellant argues that the sentence was excessive.

As stated above, the record indicates that no post-trial motion nor a petition to withdraw the guilty plea were ever filed by the appellant prior to taking this appeal. In December of 1975, we decided Commonwealth v. Roberts, ...


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