No. 559 April Term, 1977, Appeal from the Orders of the Court of Common Pleas of Mercer County, at No. 98 June Term, 1971, and Nos. 13, 14 and 18, December Term, 1972 Criminal Division.
Joseph G. Kanfoush, Pittsburgh, for appellant.
David B. Douds, Assistant District Attorney, Mercer, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 264 Pa. Super. Page 498]
The instant appeal is brought by appellant as a challenge to his re-sentence following a parole violation. For the reasons stated herein, we affirm the orders of the court below.
The following events are pertinent to this appeal. Appellant was convicted by a jury on December 20, 1972, of three different charges: (1) issuing a worthless check;*fn1 (2) violating the Pennsylvania Securities Act;*fn2 and (3) cheating by fraudulent pretenses.*fn3 On February 26, 1974, he was sentenced to consecutive terms as follows: (1) eleven and one-half (11 1/2) to twenty-three (23) months imprisonment plus restitution of $2,000 on the worthless check charge; (2) one year imprisonment plus costs of prosecution on the securities charge; and (3) two and one-half (2 1/2) to five (5) years imprisonment plus restitution of $30,000 on the fraudulent pretenses charge. The court then suspended the prison sentences on the latter two charges. On August 1, 1975, the court ordered appellant to be released from prison,*fn4 and placed him on probation for a term of five years. The order encompassed all three charges and was not restricted to the worthless check charge. Appellant subsequently violated the terms of probation, and on February 7, 1977, the court below vacated the order of probation and reinstated the original February 26, 1974 sentences. The court, however,
[ 264 Pa. Super. Page 499]
specifically revoked that portion of the February 26, 1974 order suspending the sentences to the offenses of violating the Pennsylvania Securities Act and cheating by fraudulent pretenses. The effect was to reinstate the full sentences to all three offenses. On February 10, 1977, the court entered an additional order affirming the order of February 7.
Appellant has appealed from the orders of February 7, and February 10, 1977, alleging that those orders subject him to double jeopardy in violation of his federal constitutional right to due process of the law.*fn5 In support of this contention, appellant reasons that the order of probation on August 1, 1975, was an increase in sentence over the original sentences of February 26, 1974, and thus a violation of his double jeopardy rights. Appellant argues that because this increase constituted double jeopardy, he cannot be re-sentenced for violating the terms of that probation as the court did in its February 7, 1977 order. Appellee, while not challenging this reasoning, alleges that appellant's failure to appeal the August 1, 1975 probation order within thirty (30) days pursuant to Pa.R.A.P. 903(a); see also Act of July 31, 1970, P.L. 673, art. V, § 502, 17 P.S. § 211.502(a) (Supp. 1978-79), constitutes a waiver of any defects in that order, including the alleged defect of double jeopardy. We agree with the Commonwealth's contention.
Initially, the double jeopardy prohibition of the federal constitution entails a trilogy of rights.
[ 264 Pa. Super. Page 500]
"It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense." Page 500} North Carolina v. Pearce, 395 U.S. 711, 717, 89 ...