No. 2343 October Term, 1979, Appeal from the Judgment of Sentence dated October 22, 1979, Court of Common Pleas, Philadelphia, Criminal Trial Division, No. 0068, August Term, 1978.
Robert Scandone, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Johnson and Popovich, JJ. Popovich, J., files a concurring opinion. Brosky, J., files a dissenting opinion.
[ 298 Pa. Super. Page 36]
For the reasons given below, the denial by the trial court of the motion to suppress is affirmed. The case is remanded to the lower court with directions to entertain appellant's motion for modification of sentence nunc pro tunc.
Paulette DeCaro was tried in the Municipal Court of Philadelphia County on charges of possession with intent to deliver a controlled substance*fn1 and knowing and intentional possession of a controlled substance.*fn2 The drugs consisted of about 855 pills and 2 vials. The municipal court judge found her guilty and sentenced her to two years' probation and a $5,000.00 fine.
Appellant filed an appeal for a trial de novo in the Court of Common Pleas. See Pa.R.Crim.P. 6006.*fn3 After a non-jury trial, she was found guilty of the charges against her, and sentenced, after denial of post-trial motions, to a term of imprisonment for not less than 11 1/2 months and not more than 23 months. It is from this sentence that she appeals.
Appellant's first allegation of error concerns the fact that the sentence imposed in the Court of Common Pleas at the trial de novo was greater than the sentence imposed at the first trial in Municipal Court. Appellant asks us to apply
[ 298 Pa. Super. Page 37]
the rule of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), to this situation, rather than the rule of Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), which is what our case law has applied hitherto.
The Pearce case applies specifically to sentences imposed following retrial after a prior conviction has been overturned on appeal because of error tainting the first trial. The Colten case applies where there is a two-tiered system, involving speedy disposition of certain criminal offenses at the first level, as is the system in Philadelphia. See Pa.R.Crim.P. 6000-6013. The United States Supreme Court specifically stated in Colten that the Kentucky trial de novo system did not present the hazards calling for the restraints which the Court had required in Pearce. See 407 U.S. at 119, 92 S.Ct. at 1961, 32 L.Ed.2d at 595. The Pearce requirements are:
whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
North Carolina v. Pearce, 395 U.S. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670. The reason for this is primarily to protect the defendant from any vindictiveness on the part of the judge at the second trial. In Colten the Court found that there was not a likely danger of such vindictiveness in the Kentucky two-tier system. The Court said:
The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.
We note first the obvious: that the court which conducted Colten's trial and imposed the final sentence was not the court with whose work Colten was sufficiently
[ 298 Pa. Super. Page 38]
dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly. Nor is the de novo court even asked to find error in another court's work. Rather, the Kentucky court in which Colten had the unrestricted right to have a new trial was merely asked to accord the same trial, under the same ...