Appeal from order of Superior Court, No. 78, Oct. T., 1970, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1965, Nos. 771 and 772, in case of Commonwealth of Pennsylvania v. Archie Hoyle Allen.
John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.
Albert L. Becker, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
Appellant was charged with assault and battery under Indictment No. 771, December Term, 1965, and with one count of assault with intent to rob and a second count of robbery under Indictment No. 772, December Term, 1965, both indictments relating to the same incident and victim. He was subsequently tried non-jury and was convicted. While sentence was suspended on No. 771, appellant was sentenced to a term of five to ten years on No. 772. Although appellant, initially, did not file post-trial motions, he was eventually permitted to file post-trial motions which later resulted in the grant of a new trial.*fn1
At this second trial appellant entered a guilty plea to both bills of indictment. He was sentenced on March 4, 1968, to not less than two and a half years nor more than eight years on No. 771 and to not less than one year nor more than two years on No. 772, both sentences to run concurrently. Thereafter appellant filed another Post-Conviction Hearing Act petition questioning the lawfulness of his sentences. After argument the judge at the second trial, on May 28, 1969, altered and imposed sentences of not less than one nor more than two years on No. 771 and of not less than two and one-half nor more than eight years on No. 772. On appeal the Superior Court affirmed per curiam over the dissenting opinion of two judges. Com. v. Allen, 217 Pa. Superior Ct. 59, 266 A.2d 799 (1970). We granted allocatur.*fn2
In this appeal we are not confronted with either factual questions or alleged irregularities committed at trial as appellant solely questions the legality and length of sentences finally imposed. Although related,
the validity of the sentences imposed on No. 771 turns, in large measure, upon our interpretation of North Carolina v. Pearce, 395 U.S. 711 (1969), whereas the legality of the sentences on No. 772 involves a discussion of our recent decision in Com. v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971). We shall discuss each indictment separately.
Indictment No. 771, December Term, 1965
Whether we consider the two and one-half to eight year sentence originally imposed by the second judge or the later one to two-year sentence, the fact remains that the price paid by appellant for his successful appeal*fn3 was a term of imprisonment rather than his earlier suspended sentence. Indeed, insofar as the sentence originally imposed by the second judge of two and one-half to eight years exceeds the statutory maximum of two years for simple assault and battery, Act of June 24, 1939, P. L. 872, § 708, 18 P.S. § 4708, we would necessarily remand to the court below for a proper sentence. Cf. Com. v. Swingle, 403 Pa. 293, 169 A.2d 871 (1961), cert. denied, 368 U.S. 862 (1961); Com. ex rel. Swingle v. Banmiller, 398 Pa. 43, 156 A.2d 520 (1959); Com. ex rel. v. Smith, 324 Pa. 73, 187 Atl. 387 (1936); Com. ex rel. ...