Appeal from judgment of sentence of Court of Common Pleas of Delaware County, Dec. T., 1973, No. 457, and March T., 1973, No. 90, in case of Commonwealth of Pennsylvania v. James W. Taylor.
David E. Auerbach, Assistant Public Defender, and Kenneth P. Barrow, Public Defender, for appellant.
Vram Nedurian, Jr., and Ralph B. D'Iorio, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Hoffman and Spaeth, JJ., concur in the result.
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The appellant pled guilty to Bill No. 90 March Term, 1973 and Bill No. 457 December Term, 1973. The two indictments involved separate violations of The Controlled Substance, Drug, Device and Cosmetic Act.*fn1 On January 18, 1974, he was sentenced to a term of imprisonment of two to four years on each indictment, the terms to run concurrently. On March 1, 1974, appellant filed a motion with the lower court to correct the sentences imposed on the ground that the sentences were illegal.*fn2 This motion was denied on August 1, 1974. An appeal was taken to this Court, however, by stipulation of counsel, the case was remanded for correction of sentence. On March 7, 1975, the lower court revoked the unlawful sentences. The appellant was then sentenced on Bill No. 90 March Term,
[ 238 Pa. Super. Page 2351973]
, to a one (1) year term of imprisonment. A similar sentence was imposed on Bill No. 457 December Term, 1973. However, unlike the original sentence, the sentence imposed on Bill No. 457 December Term, 1973 was made to run consecutive to the sentence on Bill No. 90 March Term, 1973. On appeal from this sentence the appellant contends that the decision of the lower court to make the one (1) year terms of imprisonment run consecutively is unfair and prejudicial.
The essence of the appellant's contention is a claim of double jeopardy. The issue properly framed, and narrowly applied to the facts of this appeal, is whether or not there is infirmity of constitutional proportion in the lower court's decision, upon remand for correction of an unlawful sentence, to make the terms of imprisonment on the separate indictments run consecutively, when, initially, the terms of imprisonment were concurrent. We find nothing constitutionally suspect in the lower court's action and affirm the judgment of sentence.
Any contention that the appellant was twice placed in jeopardy when the lower court changed the terms of imprisonment from concurrent to consecutive must be scrutinized in light of North Carolina v. Pearce, 395 U.S. 711 (1969), the seminal case involving a claim of double jeopardy. Our Supreme Court has summarized the import of North Carolina v. Pearce, supra, in Commonwealth v. Allen, 443 Pa. 96, 100-101, 277 A.2d 803, 805 (1971):
"Following an unbroken line of cases, the Supreme Court in Pearce concluded that the double jeopardy provision does not bar a more severe sentence upon reconviction following the accused's successful appeal. Nonetheless, the Supreme Court held: (1) ' Due process of law. . . 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; and (2) the
[ 238 Pa. Super. Page 236]
sentences was in fact a "more severe" sentence in ...