Opinion
April 13, 1970.
June 11, 1970.
Criminal Law — Sentence — Retrial — Increased sentence — Identifiable conduct on part of defendant occurring after original sentencing.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 146, April T., 1969, from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, April T., 1959, Nos. 15, 46 and 48, in case of Commonwealth of Pennsylvania v. Frank M. Gaito. Judgment of sentence affirmed; reargument refused September 4, 1970.
Indictment charging defendant with burglary, assault with intent to kill, and violation of Uniform Firearms Act. Before SMITH, JR., J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
George H. Ross, Public Defender, for appellant.
Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
HOFFMAN, J., filed a dissenting opinion, in which MONTGOMERY and CERCONE, JJ., joined.
Submitted April 13, 1970.
Judgment of sentence affirmed.
This is an appeal from judgment of sentence after re-trial in the Criminal Court of Allegheny County. At the first trial, appellant received a sentence of 10 to 20 years on burglary, 3 1/2 to 7 years on assault with intent to kill, and 1 1/2 to 3 years for violation of the Uniform Firearms Act.
On re-trial, appellant received the identical sentences except that his sentence for violation of the Uniform Firearms Act was not suspended. I have noted in my dissenting opinions in Commonwealth v. Allen, 217 Pa. Super. 59, 266 A.2d 799 (1970), and Commonwealth v. Werner, 217 Pa. Super. 78, 266 A.2d 803 (1970), that due process requires that an appellant in similar circumstances, receive no more than the original suspended sentence on retrial unless "identifiable conduct on the part of [appellant] occurring after the time of the original sentencing proceeding" justifies a more severe sentence. The full analysis of this problem is found in North Carolina v. Pearce, 395 U.S. 711, 723-726, 89 S. Ct. 2072, 2080-2081 (1969).
Since no such indication appears of record I would remand this case to the lower court for the purpose of ascertaining whether any justification existed for this change in sentence. If no such justification appears, the suspended sentence should be reinstated.
MONTGOMERY and CERCONE, JJ., join in this dissenting opinion.