Appeal from order of Superior Court, April T., 1970, No. 140, affirming judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Oct. T., 1968, No. 18, in case of Commonwealth of Pennsylvania v. Michael Louis Silverman.
Michael Louis Silverman, appellant, in propria persona.
Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell dissents. Mr. Justice Cohen took no part in the decision of this case.
On February 19, 1969, Michael Louis Silverman was convicted in a non-jury trial in Allegheny County of possessing heroin in violation of The Drug, Device and Cosmetic Act of September 26, 1961, P. L. 1664, § 20, as amended, 35 P.S. § 780-20.
On February 20, 1969, Silverman was called before the trial judge for sentence, and, as disclosed by the record, a lengthy colloquy ensued concerning the defendant's previous background and a proper disposition of the case. The judge then addressed Silverman and said: "The Court: In your case, the sentence of the Court is that you pay the cost of prosecution, that is on [the bill charging you with possession of heroin], pay the cost of prosecution and undergo imprisonment in the Western Correctional Diagnostic and Classification Center for not less than two or more two [sic] years.*fn1 This sentence is to be suspended upon condition that the federal authorities will commit you to Lexington under the program for the rehabilitation of narcotic users, which means that you must be there under an involuntary commitment for a period of seven months and then be paroled for a period of three years; the violation [of] which will return you automatically. Do you understand that? [Appellant]: Yes,
Your Honor. The Court: You can take up your negotiations as soon as the federal authorities notify us they are ready to accept you on those terms, and then our sentence is suspended."
On February 21st, Silverman was called before the trial judge again, and the judge said he had some "second thoughts" about his action of the previous day, and, in the meantime, had received a copy of a report made by the county's Behavior Clinic in 1966, and also had been informed of other criminal charges currently pending against Silverman. Whereupon, a new sentence was imposed directing that Silverman serve a term of imprisonment in the Western Diagnostic and Classification Center of not less than two nor more than five years, upon which it was directed that he stand committed. Silverman filed an appeal to the Superior Court which, subsequently, affirmed the judgment of sentence without opinion. Judge Hoffman filed a dissenting opinion in which Judge Cercone joined. See 217 Pa. Superior Ct. 68, 266 A.2d 794 (1970). We granted allocatur and now reverse.
The narrow, but important, question presented is whether Silverman was subjected to double jeopardy in violation of the double jeopardy clause in the Fifth Amendment to the United States Constitution.
For many years the courts in Pennsylvania ruled that the proscription in the United States Constitution against double jeopardy was not binding on the states, and that the double jeopardy provision in the Pennsylvania Constitution (Art. I, § 10) applied only to capital offenses. See Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967) and cases cited.
Premised upon the foregoing conclusions, it was ruled that Pennsylvania trial courts had the power to modify or increase a sentence imposed on a criminal defendant ...