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decided: October 5, 1978.


No. 21, January Term, 1977, Appeal from the Order of the Superior Court, affirming the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, at No. 445, February Session, 1973.


Klovsky, Kuby & Harris, William D. Harris, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. O'Brien, and Pomeroy, JJ., concurred in the result. Eagen, C. J., noted his dissent. Roberts and Manderino, JJ., filed dissenting opinions.

Author: Nix

[ 482 Pa. Page 363]


Appellant, Shirley Henderson, was convicted of involuntary manslaughter after a non-jury trial in the Court of Common Pleas of Philadelphia County. After post-trial motions were denied, appellant was sentenced to serve a maximum term of imprisonment of three years. No expressed minimum sentence was imposed in compliance with the Act of July 16, 1968, P.L. 349, § 1, 61 P.S. § 566, which directed that sentencing courts should not set minimum sentences for women who were being committed to the State Correctional Institution at Muncy. Upon appeal, the Superior Court vacated the judgment of sentence and remanded for reconsideration of sentence. Commonwealth v. Henderson, 234 Pa. Super. 525, 341 A.2d 195 (1975). The basis for the Superior Court's order was the trial court's erroneous belief that the maximum sentence was five years whereas the maximum sentence was, in fact, three years. The Superior Court concluded that this mistaken belief might have influenced the sentence actually imposed.*fn1

Upon resentencing, the trial court imposed a sentence of six months to three years. Appellant again appealed to the Superior Court, this time contending that the second sentence

[ 482 Pa. Page 364]

    represented an enhanced penalty. The Superior Court affirmed the trial court without an opinion and we granted appellant's request for review.

In the interim between the imposition of the original sentence and the resentencing, this Court handed down its decision in Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974). In Butler, we held that section 1 of the Act of July 16, 1968, supra insofar as it required trial courts not to fix minimum sentences when sentencing women, was unconstitutional. Thus any sentence of a woman to the State Correctional Institution at Muncy after the date of our decision in Butler would properly contain a minimum as well as a maximum sentence.

Appellant argues before us that the imposition of a minimum sentence not previously imposed is an increase in the punishment violative of the double jeopardy protection or the due process provision. The Commonwealth responds by charging the issue as framed in the appeal before this Court is broader than the grounds relied upon in the Petition for Allowance of Appeal we granted. Specifically, it is contended that appellant had restricted her request for review to a determination of a possible double jeopardy violation and therefore we should not consider the present assertion of a due process violation.

We agree with the general proposition that orderly and efficient appellate review is best served by confining the issues considered to "only the questions set forth in the petition, or fairly comprised therein, . . ." Pa.R.App.Proc. 1115(a)(3). To proceed otherwise would result in precluding the opposing party an opportunity of setting forth their reasons why the additional arguments should not have been considered on appeal. Furthermore, such a practice would invite the introduction of issues and theories not presented to the courts below. See Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). We also agree that double jeopardy and due process questions present traditionally

[ 482 Pa. Page 365]

    distinguishable areas of constitutional concern directed at eradicating different evils. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).*fn2 It would therefore be tantamount to ignoring the purposes of Rule 1115(a)(3) to rationalize that an argument framed entirely in terms of double jeopardy was at the same time raising the issue of due process concerns. In appellant's petition for review the issue was framed solely on the grounds of double jeopardy.*fn3 We are satisfied that the position urged by the Commonwealth has merit and we will limit our consideration to the asserted double jeopardy violation.*fn4

The first issue to be considered is whether the fixing of a minimum sentence is an enhancement of the sentence originally imposed. Under the law at the time of the entry of the original sentence, the imposition of a sentence without a minimum term being fixed for a female committed to Muncy, had the effect of making her eligible for parole immediately upon incarceration. Act of August 6, 1941, P.L.

[ 482 Pa. Page 366861]

, as amended, 61 P.S. §§ 331.21, 331.31. See Commonwealth v. Butler, supra, 458 Pa. at 295, 328 A.2d at 855; Commonwealth v. Daniels, 430 Pa. 642, 647 n. , 243 A.2d 400, 402 n.6 (1968). Thus the imposition of a six month minimum defers parole eligibility for a six month period. Commonwealth v. Butler, supra.*fn5

The Commonwealth argues that since this Court has held that the legal sentence is the maximum sentence, Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780, 786 (1977); Commonwealth v. Daniels, supra, 430 Pa. at 647, 243 A.2d at 403; Commonwealth ex rel. Carmelo v. Smith, 347 Pa. 495, 496, 32 A.2d 913, 914 (1943); Commonwealth v. Kalck, 239 Pa. 533, 87 A. 61 (1913), an adjustment of the minimum sentence should be of no consequence for double jeopardy.*fn6

[ 482 Pa. Page 367]

In Sutley, proceeding on the theory that the maximum sentence is the real or controlling sentence, we reasoned that a subsequent legislative alteration of a minimum sentence might not offend the rules of the inviolability of final judicial judgments. Commonwealth v. Sutley, supra, 474 Pa. at 268, 378 A.2d at 786. In contrast however, in Butler, this Court recognized that disparity in our law of sentencing in fixing minimum sentences depending upon the sex of the offender was sufficiently significant as to violate the equal rights amendment to the State Constitution. P.S.Const. art. I, § 28. Although theoretically the essence of the sentence is the length of the State's control over the offender and the setting in which that control is to be exercised is more of an ...

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