Dissenting Opinion by
Hoffman, J.:Appellant contends that the lower court abused its discretion in imposing sentence.
On January 22, 1974, appellant was convicted by a jury of violating §780-113(a) (30) of The Uniform Controlled Substance, Drug, Device and Cosmetic Act,1 which prohibits, inter alia, the possession of a controlled substance with intent to deliver.2 Appellant was found in possession of 53.9 grams (approximately two ounces) of marijuana. Appellant is a married man, age twenty-one, with several small children and has no prior criminal record. The trial judge sentenced appellant to pay a fine of $100.00 and to undergo imprisonment for a period of not less than two nor more than five years, the maximum permissible period of incarceration.3
The sentence imposed is within the statutory limits. The appellate courts of this Commonwealth have stated many times that we will not interfere with the discretion of the trial court in the imposition of sentence. See, e.g., Commonwealth v. Pouls, 198 Pa. Superior Ct. 595, 182 A.2d 261 (1962). We have recently stated, however, that the appellate courts do possess the authority to modify a sentence which is manifestly excessive and *37inflicts too severe a punislnnent. Commonwealth v. Warner, 227 Pa. Superior Ct. 291, 324 A.2d 361 (1974). See also, Commonwealth v. Pouls, supra.4 This appellate power is reserved for the extraordinary case; we normally defer to the sentencing discretion of our lower courts. When a sentence is within the legal limit set by our legislature, this Court is, and should he, loathe to tamper with the trial court’s discretion. In the rare case, however, where the sentence imposed raises concerns of constitutional dimensions, this Court must exercise its powers of appellate review. Cf. Baker v. United States, 412 F. 2d 1069 (5th Cir. 1969). This case falls within that narrow category.
Appellant argues that the trial judge abused his discretion in imposing the maximum period of incarcer*38ation on a first offender found in possession of a rather small amount of marijuana.5 Appellant cites instances where defendants guilty of the same or similar crimes in 1973 and 1974 were given much more lenient sentences by the same court: (1) for possessing one pound ten ounces of marijuana with intent to deliver, a defendant received a sentence of three to twelve months; (2) for three counts of delivering marijuana to an undercover agent, a defendant received a sentence of three to twelve months; (3) for possession with intent to deliver of nineteen bags of heroin, a defendant received a sentence of eleven to twenty-three months; and (4) for possession with intent to deliver of nineteen bags of heroin, a defendant was sentenced to two years probation. In a vacuum, such sentencing disparity proves little, since we are possessed with less information of the surrounding circumstances than the trial judge. These four defendants, however, had one factor in common — they all pleaded guilty. The appellant in this case exercised his constitutional right to stand trial. The disparity in the sentences imposed cannot be explained by surrounding circumstances because the appellant was a first offender in possession of only two ounces of marijuana.
This court has recently stated “. . . that a plea of guilty may be a proper factor for a judge to consider in deciding whether to give a more lenient sentence. It does not follow that the converse is true. A plea of not guilty or a demand for a jury trial are not factors that a judge should consider in deciding whether to give a more severe sentence.” Commonwealth v. Staley, 229 Pa. Superior Ct. 322, 324 A. 2d 393 (1974). In the present case, the Commonwealth’s brief concedes that *39appellant “received a sentence winch was more severe than usual for the offense charged.” The clear implication is that appellant received the maximum possible jail term because he exercised his constitutional rights. An affirmance of this sentence can only place pressure upon defendants, and defense counsel, to plead guilty rather than to stand trial. A practice which may deter the exercise of the constitutional rights to plead not guilty and/or demand a jury trial cannot be tolerated.
Although this opinion is based on the possible “chilling effect” on constitutional rights which may result, it is important to note the severity of the sentence imposed. Appellant received a possible jail term of five years for possessing two ounces of marijuana with intent to deliver. In other counties of this Commonwealth, a defendant, especially a first-time offender, would be placed in a pre-trial probationary program,6 and would receive no jail term at all.
It must be reiterated that this appeal presents an extraordinary situation. Modification of sentences is a serious matter and should not be resorted to lightly. It would be remiss, however, for this Court to allow a first offender found in possession of two ounces of marijuana to be sentenced to a five-year jail term, while the same lower court has sentenced a defendant found in possession of nineteen bags of heroin to a two-year probation.
*40The judgment of sentence should be vacated and the case remanded for resentencing.
1972, April 14, P. L. 233, No. 64, §1, eff. June 14, 1972.
Marijuana is a controlled substance under §780-104 (1) (iv) of the Act.
Under §780-113(f) (2), a violation of §113(a) (30) in regard to a non-narcotic drug carries a maximum sentence of five years imprisonment, or a $15,000 fine, or both.
See also, American Bar Association Standards Relating to Appellate Review of Sentences, §§ 1.2 and 3.2:
“1.2 Purposes of review.
“The general objectives of sentence review are:
“(i) to correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest;
“(ii) to facilitate the rehabilitation of the offender by affording him an opportunity to assert grievances he may have regarding his sentence;
“(iii) to promote respect for law by correcting abuses of the sentencing power and by increasing fairness of the sentencing process ; and
“(iv) to promote the development and application of criteria for sentencing which are both rational and just. . . .
“3.2 Powers of reviewing court; scope of review.
“The authority of the reviewing court with respect to the sentence should specifically extend to review of:
“(i) the excessiveness of the sentence, having regard to the nature of the offense, the character of the offender, and the protection of the public interest; and
“(ii) the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based.”
Had appellant been found with thirty grams of marijuana rather than 54 grams, the maximum legal sentence would be thirty days imprisonment. See §113 (a) (31) and §113 (g) of the Act.
In a telephone conversation with the Assistant District Attorney, Chief, Legal Counselling Division of Philadelphia County, we were advised that defendants found with one ounce of marijuana or less are arrested but are routinely discharged. A defendant found with two ounces of marijuana is arrested and his ease is listed for trial. Sometimes, such a defendant will he discharged. Usually such a defendant will be placed in a pre-trial probationary program, especially if he is a first offender, where he will have a non-judicial hearing and will subsequently be placed on probation for a certain period. If the probation is completed without violation, the record is expunged.