Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1969, Nos. 24, 25, 44, 45, 46 and 47, in case of Commonwealth of Pennsylvania v. Clifford Hermankevich.
Sallie Ann Radick, Assistant Public Defender, with her John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Opinion by Montgomery, J.
[ 220 Pa. Super. Page 199]
Following pleas of guilty, appellant, on March 27, 1969, was sentenced to consecutive three-to-six-year terms on each of the following indictments -- Nos. 24, 25, 44, and 45 February Session, 1969, charging armed robbery -- and to each sentence the following was added: "and acc. to Act July 30, 1968 -- not less than 5 years or more than 10 years in Western Penitentiary in addition to above sentence . . ."
Similar sentences were imposed on indictments 46 and 47 February Sessions, 1969, including the additional 5 to 10 years. However, the sentences were made to run concurrently with the first of those previously mentioned, i.e., 24 February Session, 1969.
Subsequently, on November 7, 1969, after the sentencing judge realized that there had been no separate indictments to support the additional 5 to 10 year sentences added to his primary sentences, he vacated all the sentences imposed on March 27, 1969, and resentenced the defendant on each of the six indictments to three to six years, the sentences to run consecutively. Consequently, the result of his action, after eliminating the improper 5 to 10 year additional sentences in each case, was to increase the combined sentence from a minimum of 12 years to a maximum of 24 years to 18 minimum and 36 years maximum.
It is the appellant's present position that the new sentence is illegal and a violation of appellant's constitutional rights since it imposes a greater sentence than was originally imposed for the armed robbery charges. He relies on North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). Therein the United States Supreme Court said, at page 726, ". . . that whenever a judge imposes a more severe
[ 220 Pa. Super. Page 200]
sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal."
Although North Carolina v. Pearce, supra, relates to a new sentence following a new trial and the present case relates to a correction of an illegal sentence, this distinction is not sufficient reason to disregard the mandate of Pearce.
Our consideration of this appeal can be limited to the sentences on indictments 46 and 47, which were changed from concurrent sentences to consecutive ones. Except for the elimination of the 5 to 10 year additional sentences in ...