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decided: February 27, 1975.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1972, Nos. 900 and 901, in case of Commonwealth of Pennsylvania v. James Tomlin.


John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.

Steven H. Goldblatt, Assistant District Attorney, with him David Richman, John H. Isom, and Mark Sendrow, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Concurring Opinion by Spaeth, J. Dissenting Opinion by Van der Voort, J. Watkins, P. J., joins in this dissenting opinion.

Author: Hoffman

[ 232 Pa. Super. Page 148]

On June 29, 1972, appellant was tried and convicted on two bills of indictment charging him with aggravated robbery and aggravated assault. The trial court sentenced him to one to five years' imprisonment on the bill charging aggravated robbery and suspended sentence on the bill charging aggravated assault. The trial court, however, vacated and deferred sentence pending motions in arrest of judgment and for a new trial which were filed on July 5, 1972. On January 4, 1973, the motions were withdrawn. After the reception of psychiatric reports, the trial court sentenced appellant to seven years' probation. Ten months later, appellant appeared before the original trial court for violation of probation. The court revoked probation and imposed a sentence of three and one-half to seven years imprisonment.

The appellant contends that the sentence of three and one-half to seven years subsequent to an initial

[ 232 Pa. Super. Page 149]

    imposition of a one to five year term is improper.

It is clearly the law in Pennsylvania that a "modification of a sentence imposed on a criminal defendant which increases the punishment constitute[s] further or double jeopardy." Commonwealth v. Silverman, 442 Pa. 211, 215, 275 A.2d 308 (1971); see also Commonwealth v. Davy, 218 Pa. Superior Ct. 355, 280 A.2d 407 (1971); Commonwealth v. Jackson, 218 Pa. Superior Ct. 357, 280 A.2d 422 (1971). If a trial court suspends imposition of a sentence and places the defendant on probation, the court is not limited by a term of probation in sentencing the defendant who has violated a condition of probation. Commonwealth v. Cole, 222 Pa. Superior Ct. 229, 294 A.2d 824 (1972). Cole, however, articulates a caveat to that power: " If a defendant is sentenced, but the judge chooses to suspend sentence pending a period of probation, the trial judge may re-sentence the defendant if he violates that probation. The maximum period of the re-sentence is limited however, to the maximum term under which the defendant was originally sentenced." 222 Pa. Superior Ct. at 231. (Emphasis added.)

In Commonwealth v. Scheetz, 217 Pa. Superior Ct. 76, 268 A.2d 193 (1970), the appellant received a sentence of eight months to three years which was changed a month later to a three year period of probation. Subsequent to a probation violation, the appellant was sentenced to a term of two to five years.*fn1 We held in

[ 232 Pa. Super. Page 150]

The case is remanded to the lower court for resentencing consistent with this opinion.


Case remanded.

Concurring Opinion by Spaeth, J.:

I wish to note a procedural point about this case that might otherwise be overlooked.

If appellant had been sentenced to one to seven years in prison, after having been sentenced to one to five, his right not to be subjected to double jeopardy would have been violated. Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971). The present case is different because appellant was not sentenced to one to seven years in prison but was placed on seven years probation. This difference is immaterial: "While an order placing a defendant on probation . . . is not a judgment of sentence [footnote omitted] as that term is construed for the purposes of procedure, it does . . . constitute punishment for the purposes of determining the question of double jeopardy." Commonwealth v. Vivian, 426 Pa. 192, 200, 231 A.2d 301, 305 (1967).

An order placing a defendant on probation is despite its interlocutory nature appealable in cases presenting exceptional circumstances. Commonwealth v. Washington, 428 Pa. 131, 236 A.2d 772 (1968); Commonwealth v. Elias, 394 Pa. 639, 149 A.2d 53 (1959). Just as a defendant may appeal a probation order if he claims trial error, Commonwealth ex rel. Paige v. Smith, 130 Pa. Superior Ct. 536, 543, 198 A. 812 (1938), so may he appeal if he claims double jeopardy error, at least so it seems to me, from which it follows that if appellant had appealed the order placing him on seven years probation the order would have been vacated and the case remanded for resentencing.

[ 232 Pa. Super. Page 152]

Appellant did not, however, have to appeal the probation order. As in other cases where an appeal from an interlocutory order is allowed, he could defer appeal until final judgment (the sentence). Commonwealth v. Elias, supra, at 642, 149 A.2d at 55. That is what he did, and I agree that on his appeal the sentence should be vacated for the reasons set forth in Judge Hoffman's opinion.

Dissenting Opinion by Van der Voort, J.:

I respectfully dissent.

The Opinion of the majority in this case theorizes that the action of a lower court in vacating a sentence is identical with that of suspending a sentence. I cannot agree with that position, especially in light of the factual and procedural history in the instant case.

The record shows that on June 29, 1972, following his conviction, the appellant was immediately sentenced by the trial court to imprisonment for one to five years. Shortly thereafter, on the same day, the Court entered the following Order: "Sentence vacated pending filing of motions within seven days. Sentence is deferred, same bail to stand." By this action, and with the particular circumstances of the instant case I believe the lower court completely nullified its earlier pronouncement of sentence. Moreover, the appellant himself made the initial sentencing a nullity when he filed post-trial motions. This is so since a trial court may not enter a valid sentence until the time for post-trial motions have expired or until such motions have been argued and decided. See Commonwealth v. Young, 223 Pa. Superior Ct. 447, 302 A.2d 402 (1973) (footnote 1).*fn1

[ 232 Pa. Super. Page 153]

In United States ex rel. Starner v. Russell, 378 F. 2d 808 (1967), cert. denied, 389 U.S. 889, 88 S. Ct. 166, 19 L. Ed. 2d 189, rehearing denied, 389 U.S. 997, 88 S. Ct. 488, 19 L. Ed. 2d 501, the United States Third Circuit Court of Appeals passed on a somewhat analogous situation. There the Court held that it was not improper for a State court to increase punishment following a new trial where the first sentence imposed on the prisoner's plea of guilt was vacated.*fn2 Surely, this Court would not have found the cases of Commonwealth v. Silverman, 422 Pa. 211, 275 A.2d 308 (1971), and Commonwealth v. Scheetz, 217 Pa. Superior Ct. 76, 268 A.2d 193 (1970), to be controlling had the appellant pursued successful post-trial motions, only to be sentenced more harshly following a new trial. I think the lower court's action in vacating its initial sentence in the instant case should be accorded similar treatment.

In reaching my conclusion, I also find it interesting to note that in this case, unlike the cases cited by the majority, the court did not more harshly sentence the appellant following his withdrawal of post-trial motions. Rather, the lower court sentenced appellant to probation rather than imprisonment.*fn3 I also deem it significant that the lower court had no psychiatric report at the time of its initial sentencing on June 29, 1972; such a report, however, was considered when the probationary sentence was imposed.*fn4

Based upon all of the above, I would affirm.

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