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decided: November 16, 1973.


Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1972, No. 1060, and March T., 1972, No. 197, in cases of Commonwealth of Pennsylvania v. Mary Ann Moore and Same v. Grover Battle.


John W. Packel, Assistant Defender, with him Judith B. Soken, and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellants.

Milton M. Stein, Assistant District Attorney, with him Maxine J. Stotland and James T. Ranney, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Cercone, J. Concurring and Dissenting Opinion by Spaeth, J. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.

Author: Cercone

[ 226 Pa. Super. Page 60]

These represent two appeals in two separate and unrelated cases which have been consolidated for purposes of appeal because each involve the identical issue. That issue is whether or not the Common Pleas Court in a trial de novo following an appeal as of right from a Municipal Court summary conviction can impose a sentence greater than that originally imposed in the Municipal Court without placing upon the record facts justifying such increase in sentence.

Defendants contend that the United States Supreme Court decision in North Carolina v. Pearce, 395 U.S. 711, 726, 89 S. Ct. 2072 (1969) is applicable. The Supreme Court there held that the trial court after successful appeal by the defendant could not, upon retrial, increase the sentence that it had imposed at the first trial unless it had affirmatively placed upon the record its reasons for such increase, which "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." The court there stated that a defendant must feel free to avail himself of his constitutional right to appeal or collaterally attack his conviction without apprehension or fear that vindictiveness on the part of the trial judge may result in an increased sentence upon remand for retrial.

It is defendants' contention that though in this case it is a different court (Common Pleas Court) which is increasing the sentence imposed by another court (Municipal Court) after trial de novo granted as a matter of right, nevertheless, the reasoning and theory behind the North Carolina v. Pearce decision apply to their case. Defendants contend "If a defendant's

[ 226 Pa. Super. Page 61]

    choice to exercise his right to a new trial in Common Pleas Court pursuant to the Pennsylvania Constitution Schedule Article 5, § 16 (iii) must be weighed against the possibility of increased punishment following the de novo trial, the state has in fact put a 'price on appeal'."

The Commonwealth, however, contends that the North Carolina v. Pearce decision has no applicability where the second sentencing is by a different court after trial de novo as of right without allegation of error. It contends that the United States Supreme Court's recent decision in Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953 (1972) is governing. The Supreme Court there held that the imposition of an increased sentence by a different court after a trial de novo under the Kentucky two-tier court system did not constitute a denial of due process. The defendants would distinguish the Colten v. Kentucky decision on the basis of the alleged differences between the statutory framework of the Kentucky two-tier system and the Philadelphia two-tier system. However, we find no basis for such distinction and hold that the United States Supreme Court's reasoning in that Kentucky case is here applicable. The Court there stated: "The right to a new trial is absolute. A defendant need not allege error in the inferior court proceeding. If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean. Ky. Rule Crim. Proc. 12.06. Prosecution and defense begin anew. By the same token neither the judge nor jury that determines guilt or fixes a penalty in the trial de novo is in any way bound by the inferior court's findings or judgment. The case is to be regarded exactly as if it had been brought there in the first instance. A convicted defendant may seek review in the state appellate courts in the same manner as a person tried initially in the general criminal court Ky. Rev. Stat. § 23.032 (Supp. 1968). However, a defendant

[ 226 Pa. Super. Page 62]

    convicted after a trial or plea in an inferior court may not seek ordinary appellate review of the inferior court's ruling. His recourse is the trial de novo. (407 U.S. at page 113).

". . . The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.

"We note first the obvious: that the court which conducted Colten's trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly. Nor is the de novo court even asked to find error in another court's work. Rather, the Kentucky court in which Colten had the unrestricted right to have a new trial was merely asked to accord the same trial, under the same rules and procedures, available to defendants whose cases are begun in that court in the first instance. . . . We see no reason, and none is offered, to assume that the de novo court will deal any more strictly with those who insist on a trial in the superior court after conviction in the Quarterly Court than it would with those defendants whose cases are filed originally in the superior court and who choose to put the State to its proof in a trial subject to constitutional guarantees.

"It may often be that the superior court will impose a punishment more severe than that received from the inferior court. But it no more follows that such a sentence is a vindictive penalty for seeking a superior court trial than that the inferior court imposed a lenient penalty. The trial de novo represents a completely fresh determination of guilt or ...

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