Joshua D. Lock, Public Defender, Marilyn C. Zilli, Asst. Public Defender, Harrisburg, for appellant.
LeRoy S. Zimmerman, Dist. Atty., Marion E. MacIntyre, Second Asst. Dist. Atty., Reid H. Weingarten, Harrisburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a concurring opinion. Eagen, C. J., dissents and would affirm the judgments of sentence.
Gerald Bethea, the appellant, was convicted by a jury of aggravated robbery, assault with intent to maim, and unlawfully carrying a firearm. No post-verdict motions were filed, and appellant was sentenced to concurrent prison terms of, respectively, ten to twenty years, two and one-half to five years, and one and one-half to three years. The Superior Court affirmed the judgments of sentence. Commonwealth v. Bethea, 243 Pa. Super. 494, 366 A.2d 262 (1976).*fn1 This Court then granted appellant's petition for allowance of appeal.*fn2 For the reasons hereinafter indicated, we vacate the judgments of sentence and remand the case for resentencing.
The first issue presented in this appeal is whether a trial court may properly consider a defendant's decision to stand trial as a factor justifying the imposition of a more severe sentence than would have been imposed had the defendant pleaded guilty. In Commonwealth v. Staley, 229 Pa. Super. 322, 324 A.2d 393 (1974), the Superior Court decided this question in the negative.*fn3 The appellant asserts that by its present decision the Superior Court failed to adhere to Staley, an error we are asked to correct.
In Commonwealth v. Staley, supra, the Superior Court vacated a sentence and remanded for resentencing on the ground that the trial judge had indicated in his pre-sentence comments that he was going to impose a harsher penalty because the defendant had chosen to stand trial rather than plead guilty.*fn4 Quoting from Baker v. United States, 412 F.2d 1069, 1073 (5th Cir. 1969), the court in Staley observed:
"'An accused cannot be punished by a more severe sentence because he unsuccessfully exercised his constitutional right to stand trial rather than plead guilty. See Thomas v. United States, 368 F.2d 941 (5th Cir. 1966); United States v. Martell, 335 F.2d 764 (4th Cir. 1964); United States v. Wiley, 278 F.2d 500 (7th Cir. 1960).'" Commonwealth v. Staley, supra, 229 Pa. Super. at 324, 324 A.2d at 395.
The Staley opinion went on to declare that although "a plea of guilty may be a proper factor for a judge to consider in deciding whether to give a more lenient sentence . . . [a] plea of not guilty or a demand for a jury trial are not factors that a judge should consider in deciding whether ...