Appeal from order of Court of Common Pleas of Chester County, June T., 1963, No. 326, in case of Commonwealth of Pennsylvania v. Edward Walter Brown.
D. Benjamin Vansteenburgh, III, Assistant Public Defender, and John R. Merrick, Public Defender, for appellant.
James Gordon Porter, Jr., and M. Joseph Melody, Assistant District Attorneys, and William H. Lamb, District Attorney, for Commonwealth, appellee.
Jones, C.j., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Concurring Opinion by Mr. Justice Roberts. Mr. Justice O'Brien and Mr. Justice Manderino join in this concurring opinion. Concurring and Dissenting Opinion by Mr. Justice Nix.
Pursuant to the October 28, 1971, order of the United States District Court for the Eastern District of Pennsylvania at Criminal Action No. 71-1811, appellant was resentenced on a 1965 second-degree murder conviction by the Court of Quarter Sessions of Chester County on December 10, 1971.*fn1 At that time, a sentence of eight and one-half to ten years was imposed and appellant was returned to prison with a commitment order for the same duration. Three days later, the court amended this sentence, increasing the maximum term to twenty years, thus making the sentence eight and one-half to twenty years. This appeal is from that order.
Appellant asserts that the lower court's action in raising his maximum sentence constituted double jeopardy and thus violated the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution. The Commonwealth, however, contends that the imposition of the longer maximum sentence merely corrected a prior "slip of
the tongue" of the sentencing judge and was therefore permissible. In support of this factual theory, the Commonwealth points to several convincing factors.*fn2 Nevertheless, for the reasons given below and particularly in view of our decision in Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971), we are of the view that the sentencing judge's inadvertence is of no aid to the Commonwealth and that the increased sentence was unlawful as being violative of double jeopardy.
The United States Supreme Court has held that neither the guarantee against double jeopardy nor the equal protection clause bars a more severe sentence upon reconviction following an accused's successful appeal. North Carolina v. Pearce, 395 U.S. 711, 723 (1969). However, Pearce also holds that "[d]ue process . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." 395 U.S. at 725. Therefore any time a more severe sentence is imposed on a defendant, it must be justified by intervening conduct by the defendant occurring after the date of the original sentence. 395 U.S. at 726.
The present problem deals with the increase of an existing sentence,*fn3 not with an increase over the original sentence following retrial as was the case in
with the following language: "Lastly, we are of the opinion that such alleged inadvertence cannot be tolerated as a matter of public policy. As best stated by the Second Circuit, '[t]he possibility of abuses inherent in broad judicial power to increase sentences outweighs the possibility of windfalls to a few prisoners.' 367 F. 2d at 370." 443 Pa. at 105, 277 A.2d at 807. In light of the above principles enunciated in Allen, we must hold that the modification of sentence in the present case, having occurred after the ...