filed: April 12, 1982.
COMMONWEALTH OF PENNSYLVANIA
PAULETTE DECARO, APPELLANT
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 rules and procedures, available to defendants whose cases are begun in that court in the first instance.
Colten v. Kentucky, 407 U.S. at 116-117, 92 S.Ct. at 1960, 32 L.Ed.2d at 593.
In Pennsylvania, we held, in Commonwealth v. Moore, 226 Pa. Super.Ct. 58, 312 A.2d 422 (1973), petition for allowance of appeal denied, May 17, 1976, that Colten applies to Pennsylvania, and that the reasoning therein is the law of Pennsylvania.*fn4 See also Commonwealth v. Possinger, 264 Pa. Super.Ct. 332, 399 A.2d 1077 (1979); Commonwealth v. Clay, 230 Pa. Super.Ct. 157, 326 A.2d 513 (1974), petition for allowance of appeal denied, January 2, 1975.
Appellant urges us to apply Pearce rather than Colten because, in particular, she took her appeal from the Municipal Court in order to relitigate a motion to suppress which had been denied in the Municipal Court. The Pennsylvania Supreme Court, in a case subsequent both to Colten and to Moore, Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895 (1976), held that the rule that pre-trial decisions, such as a motion to suppress, at the Municipal Court level, cannot be relitigated during the Common Pleas trial de novo was not unconstitutional. The issue, then, is whether the loss of the right to relitigate a motion to suppress at a trial de novo makes for a significant difference between the Kentucky
[ 298 Pa. Super. Page 39]
and the Philadelphia two-tier systems, such that the rule in Commonwealth v. Moore (Colten applies in Pennsylvania) should no longer stand.*fn5
Appellant argues that there are three basic differences between the Kentucky system approved in Colten and the system in Philadelphia: (1) in Colten a prison sentence was not involved, but merely a fine; (2) the right to trial in Kentucky involves a completely fresh determination of guilt or innocence which is allegedly now lacking in the Philadelphia system since suppression motions cannot be relitigated; (3) in Kentucky there is a right to trial by jury at the first level, which is not the case in the Philadelphia system.
As to the first difference, i.e. the penalty involved, the Supreme Court in Colten, though it mentioned that the defendants in Pearce had received longer prison sentences after reconviction, did not say that it was the nature of the penalty which called for the rule. It was in the motivation for the increased penalty that the danger lay:
Positing that a more severe penalty after reconviction would violate due process of law if imposed as purposeful punishment for having successfully appealed, the court concluded that such untoward sentences occurred with sufficient frequency to warrant the imposition of a prophylactic rule to insure "that vindictiveness against a defendant for having successfully attacked his first conviction . . . [would] play no part in the sentence he receives after a new trial . . ." and to ensure that the apprehension of such vindictiveness does not "deter a defendant's exercise of the right to appeal or collaterally attack
[ 298 Pa. Super. Page 40]
his first conviction . . . ." 395 U.S. at 725 [89 S.Ct. at 2080], 23 L.Ed.2d at 669.
Colten v. Kentucky, 407 U.S. at 116, 92 S.Ct. at 1960, 32 L.Ed.2d at 593.
As to the second difference, i.e. Kentucky's clean slate at the second level, Pa.R.Crim.P. 6010*fn6 provides that on appeal the matter shall be treated in the same manner as any other court case. Therefore, theoretically, the Pennsylvania system, like the Kentucky system, gives the defendant a fresh start. The motion to suppress is a pretrial procedure in Pennsylvania, see Pa.R.Crim.P. 306, and its denial is final and binding, see Pa.R.Crim.P. 323(j).*fn7 Upon conviction of the defendant, the denial is appealable. See Commonwealth v. Kaschik, 235 Pa. Super.Ct. 388, 396 n. 7, 344 A.2d 519, 524 n. 7 (1975). Our Supreme Court said in Harmon :
Moreover, appellee has failed to establish any deprivation of an accused's substantive rights that would result under General Court Regulation 72-7.*fn8 Both Municipal and Common Pleas Courts are bound by the same law and apply the same standards in ruling upon the merits of the suppression motion. The judges of both courts are trained in the law and their decisions are subject to review on
[ 298 Pa. Super. Page 41]
post-trial motions and upon appeal to the appellate tribunals of this Commonwealth. Our interpretation of the rule places the accused, who first appeared in the Municipal Court, on the same plane as the individual whose case was initiated in the Court of Common Pleas. In both situations the pre-trial decision cannot be relitigated during the Common Pleas Court trial, and in each instance the accused must demonstrate in post-trial and/or appellate proceedings that error below occurred. We are therefore satisfied that General Court Regulation 72-7 does not transgress any constitutional provision and, therefore, is valid.
Commonwealth v. Harmon, 469 Pa. at 498, 366 A.2d at 899 (footnotes omitted). Furthermore, this difference again is not one wherein lies a danger of judicial vindictiveness such as is described by the Supreme Court of the United States in Pearce.
As for the third difference i.e. trial by jury at the first level, the Philadelphia rules provide, in order that there be no violation of the constitutional right to trial by jury, that a defendant must be informed that he may appeal for trial de novo before a jury. Pa.R.Crim.P. 6006(a)(2).*fn9 He is not forced to content himself with a trial without a jury. The right to appeal to Common Pleas is absolute. We do not see that having only one jury trial in Philadelphia, in contrast with the two in Kentucky, creates a risk that the second judge will vindictively impose a stiffer sentence.
Accordingly, we decline to follow appellant's suggestion that we apply Pearce to Philadelphia's system. The reasoning in Harmon makes it quite clear that the difference between the two-tier systems discussed is not of a dimension such as to effect the quality of justice dispensed in Philadelphia. The reasoning in Colten applies to the situation in Philadelphia despite the lack of the right to relitigate the motion to suppress. Further, the law of sentencing procedures in Pennsylvania contains adequate protection for defendants undergoing sentencing. If the
[ 298 Pa. Super. Page 42]
Common Pleas Courts follow the requirements of the Sentencing Code, Act of December 30, 1974, P.L. 1052, No. 345, § 1; 42 Pa.C.S.A. §§ 9701-9781 (Pamph.1981), and of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), defendants being resentenced after a trial de novo are sufficiently protected.
We therefore conclude that there is no defect in the Common Pleas judge having imposed a greater sentence than that which was imposed by the Municipal Court judge, if the statutory and case law sentencing procedures were complied with.*fn10
[ 298 Pa. Super. Page 43]
Appellant challenges the sentence imposed, claiming that it is excessive. This leads us to a consideration of the sentencing hearing conducted by the Common Pleas judge. It is well-settled law that the sentence imposed upon a convicted defendant is within the broad discretion of the sentencing judge. See Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Campolei, 284 Pa. Super.Ct. 291, 425 A.2d 818 (1981). The sentencing judge must, however, comply with Pa.R.Crim.P. 1405,*fn11 with the standards of the Sentencing Code, 42 Pa.C.S.A. § 9721(b),*fn12
[ 298 Pa. Super. Page 44]
with the factors in 42 Pa.C.S.A. § 9725,*fn13 and also with the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), giving reasons on the record for his choice of sentence.
The transcript of the sentencing hearing shows that the judge took into consideration the Sentencing Code guidelines and gave reasons for his choice of sentence. He also notified appellant of her right to appeal to this court within thirty days. He neglected, however, to inform appellant of her right to file a motion to modify sentence within ten days, as he is required to do by Pa.R.Crim.P. 1405(c), supra.
No motion was filed by appellant for reconsideration by the trial court of the sentence imposed. Pa.R.App.P. 302(a) provides that issues not raised in the trial court are waived and cannot be raised for the first time on appeal. To preserve the issue of excessive sentence the correct procedure would have been to have filed a written motion to modify sentence in accordance with Pa.R.Crim.P. 1410.*fn14 Failure to do so waives any complaint concerning sentence that does not involve the lawfulness of the sentence itself.
[ 298 Pa. Super. Page 45]
was litigated in the municipal court, in the context of the motion to suppress, and subsequently in the Court of Common Pleas in the context of the post-trial motions.
The testimony at the suppression hearing shows that the police took with them one Sadusky, a defendant on another charge who knew appellant and who had agreed to have appellant open her door to him for the benefit of the police. The front door was reinforced by an iron gate opening outwards. When appellant opened the door to Sadusky, at least one police officer yelled out "police" and "we have a warrant". A police officer standing with Sadusky grabbed the iron gate to prevent it from being slammed shut, and the other two police officers ran in, while appellant stood there, doing and saying nothing. The police had seen another person in the house, and rushed through the house to prevent disposal of any controlled substance, showing the warrant to appellant later. The judge, on the basis of Commonwealth v. Regan, 254 Pa. Super.Ct. 555, 386 A.2d 89 (1978), found that Sadusky was being used as a ruse to get the door open and that there was no violation. We see no error in the conclusion drawn by the judge from the facts. The crucial issues are authority, purpose and entry, Commonwealth v. McCarthy, 257 Pa. Super.Ct. 42, 390 A.2d 236 (1978). The police announced their authority and purpose and though they rushed in quickly there was no forced entry. There was no violation of appellant's rights in the execution of the warrant.
Secondly, appellant alleges error with respect to the affidavit on which the warrant was based. She claims that because she was not allowed to review all records testified to by the affiant in showing the reliability of the informant, the requirements of Commonwealth v. Hall, 451 Pa. 201,
[ 298 Pa. Super. Page 47302]
A.2d 342 (1973) were not satisfied. Hall requires that a defendant at a suppression hearing be afforded the opportunity to test the truthfulness of the recitals in the warrant alleging the informant's reliability. Id., 451 Pa. at 208, 302 A.2d at 346. To achieve this, the defendant must be allowed meaningful cross-examination of the police officer-affiant at the hearing. Id. Mere allegations of the informant's reliability are insufficient. 451 Pa. at 207, 302 A.2d at 345.
At the suppression hearing defense counsel requested the court term and docket numbers of earlier criminal proceedings which allegedly resulted from information supplied by the informant whose information was the basis of the warrant in this case. Then, in the post-trial motions hearing defense counsel claimed that he should have been shown all warrants resulting from the informant's previous information.
From the record of the suppression hearing we see that the hearing had been recessed in order that defense counsel be given citations to other criminal cases alleged in the warrant. There was an in camera hearing on the Hall motion. Most importantly, there was cross-examination of the police officer-affiant. Lastly, there was discussion between defense counsel and the trial judge as to what the Hall case requires. There is no error in the judge's determination as to what Hall requires. Defense counsel was granted what Hall requires. There was no error in not granting him extra time to review the records. The denial of the motion to suppress is affirmed.
There was no error per se in the trial court's imposition of a greater sentence than that imposed in Municipal Court. However, the case is remanded to the lower court in order that the lower court entertain a timely motion for modification of sentence nunc pro tunc. Appellant will have ten days, from the filing of the record and this opinion in the lower court, in which to file a motion for modification of
[ 298 Pa. Super. Page 48]
sentence in the lower court. Jurisdiction is not retained by this court.
POPOVICH, Judge, concurring:
I agree with Judge Johnson's reasoning that the holding in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) is applicable to the two-tier system in Philadelphia, notwithstanding the absence of an accused's right to relitigate in a trial de novo in the Court of Common Pleas the denial of his motion to suppress by a Municipal Court. See Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895 (1976). Additionally, and more importantly, I agree that "there is no defect in the Common Pleas judge having imposed a greater sentence than that which was imposed by the Municipal Court judge, if the statutory and case law sentencing procedures are complied with." (Emphasis added) (Footnote omitted) Commonwealth v. DeCaro, 298 Pa. Super. 32, 42, 444 A.2d 160, 165 (1982).
However, I write separately to point out that the latter statement overrules our holding in Commonwealth v. Moore, 226 Pa. Super. 58, 312 A.2d 422 (1973). In Moore, the question posed was:
"whether or not the Common Pleas Court in a trial de novo following an appeal as of right from a Municipal Court summary conviction can impose a sentence greater than that originally imposed in the Municipal Court without placing upon the record facts justifying such increase in sentence." (Emphasis added) Id., 226 Pa. Super. at 60, 312 A.2d at 422.
To start with, the Court in Moore found the Kentucky system, as discussed in Colten, to be indistinguishable from the Philadelphia system. Consistent therewith, the Court
[ 298 Pa. Super. Page 49]
went on to hold that, unless the appellant appealing a summary judgment to a higher court alleges error in regard to the prior summary offense and in the sentence imposed by the municipal court, the reasoning supporting Colten rather than that supporting North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) was applicable and governing. In other words, the Moore Court was stating that the trial judge's reasoning for increasing a sentence after retrial was not required to "'be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding[,]'" Commonwealth v. Moore, supra, 226 Pa. Super. at 60, 312 A.2d at 423, unless, as just stated, the appellant alleged error attendant to the summary proceedings and the sentence imposed by the municipal court.*fn1 In
[ 298 Pa. Super. Page 50]
light of our Supreme Court's ruling in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and the promulgation of the Sentencing Code (42 Pa.C.S.A. § 9701 et seq. (Pamphlet, 1981)), such statement can no longer be considered to be a viable tenet in the law.
Furthermore, I find that Riggins and the Sentencing Code are sufficient safeguards to assure that any sentence imposed, regardless of whether it be entered after a trial de novo from a summary offense or following a retrial, comports with the dictates of due process and is not constitutionally infirm.
BROSKY, Judge, dissenting:
The majority holds that the fact that the de novo court is bound by the decision of the suppression court in the Municipal Court does not necessitate us finding that the system involved herein is different than that found in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). I do not agree. I would hold that the suppressibility of presumably critical evidence has been litigated by a different court than that reaching the decision upon which the appellant herein was sentenced and as such that the de novo court has not, in its fullest extent, engaged in a de novo determination. It is not uninfluenced by the decision of the municipal court. Thus, the two-tier system herein is distinguishable from that found in Colten. Accordingly, I would hold that the de novo court is obliged to sentence DeCaro to no more severe a sentence than that she received in the Municipal Court unless it finds there is "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original (Municipal Court) sentencing proceeding." North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656, 670 (1969). I would remand to the trial court for proceedings consistent with this opinion.