On Remand from the November 12, 1985 Order of the Supreme Court of the United States, No. 84-1852, Reversing the Judgment of the Supreme Court of Pennsylvania, dated March 29, 1985, on a Commonwealth-Requested Discretionary Appeal as to the January 24, 1984 Superior Court Order, Denying Reargument of the November 10, 1983 Superior Court Panel Decision Docketed at Philadelphia 1981, No. 1107, Reversing the Judgment of Sentence Imposed by the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, on Nos. 1857 through 1862, 1866 through 1875, 1879 through 1888, and 1907 through 1914, December Session, 1979. On Remand Pursuant to Order of Supreme court of United States Entered November 12, 1985, at No. 84-1852, Reversing Order of Supreme Court of Pennsylvania entered March 29, 1985, at No. 83 E.D. Appeal Dkt. 1984, Affirming Order of Superior Court Entered November 10, 1983, at No. 1107 Phila. 1981, Affirming in Part and Reversing in Part Judgments of Sentence of Court of Common Pleas of Philadelphia County, Trial Division Criminal Section, Entered April 8, 1981, at Nos. 1857-1862, 1866-1875, 1879-1888 and 1901-1914 December Session 1981. 474 U.S. ,
Flaherty, Justice. Nix, C.j., files a dissenting opinion which is joined by Zappala, J.
The Commonwealth, appellant herein, asks us to remand this matter to permit the trial court to alter sentences which were legally imposed on some informations because of a subsequent appellate court ruling discharging appellee on a different information on which a jail term had been imposed. A brief review of the procedural history is in order.
Appellee Benjamin Goldhammer was charged in 168 informations, at Nos. 1857-2024 December Term, 1979, with 56 violations of 18 Pa.C.S.A. § 3921 (theft by unlawful taking
or disposition, a felony of the third degree), 56 violations of 18 Pa.C.S.A. § 4101 (forgery, a felony of the third degree) and 56 violations of 18 Pa.C.S.A. § 3927 (theft by failure to make required disposition, a felony of the third degree). The charges arose out of Goldhammer's practice over a period of slightly over 4 years, from November 29, 1974 through January 26, 1979, and while he was controller for the victim company, of forging the signature of one of the authorized signatories for the corporation and either cashing checks or depositing them into his own checking account. Goldhammer's employer suffered a loss of over $220,000.
After a bench trial before the Honorable Michael E. Wallace, in the Court of Common Pleas of Philadelphia, Goldhammer was acquitted on all the informations charging violations of 18 Pa.C.S.A. § 3927. He was convicted on all other informations and sentenced to consecutive terms of imprisonment of 1-5 years each on one information charging theft by unlawful taking and one information charging forgery. Sentencing on all other informations was suspended. Goldhammer's petition for modification of sentence was granted and he was subsequently sentenced to 2-5 years imprisonment on the theft conviction and 5 concurrent years of probation on the forgery conviction.
Goldhammer appealed to Superior Court.*fn1 All 34 convictions for theft by unlawful taking, for incidents which occurred on or before September 23, 1977, were reversed on grounds prosecution was barred by the statute of limitations, and Goldhammer was discharged as to those informations. All other judgments of sentence were affirmed.
The instant controversy arose because the only conviction for which Goldhammer received a jail term was among those which were reversed. The Commonwealth filed a petition for reargument, requesting Superior Court to remand the record to the sentencing court for resentencing in
light of Superior Court's disposition. The petition for reargument was denied.
We granted the Commonwealth's petition for allowance of appeal and affirmed Superior Court's reversal of the theft convictions.*fn2 We declined to remand the matter for resentencing on grounds the double jeopardy clause bars resentencing under these circumstances.
This matter is before us on remand from the Supreme Court of the United States. Their order states:
[B]ecause the Pennsylvania Supreme Court held that resentencing was barred by the Double Jeopardy Clause, there was no need to consider below whether the Pennsylvania laws in effect at the time allowed the state to obtain review of the sentences on the counts for which the sentence had been suspended. We reverse and remand the case to the Supreme Court of Pennsylvania for a determination of that issue, and for further consideration of this case in light of DiFrancesco, [449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)].
Having done so, as will be discussed infra, we reverse our original order denying resentencing.
In DiFrancesco, the Supreme Court of the United States addressed the constitutionality of a provision of the Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 922, 18 U.S.C.S. § 3576, which authorized government appeals of sentences imposed upon special offenders. The Court of Appeals had dismissed the government's appeal, concluding that "to subject a defendant to the risk of substitution of a greater sentence, upon an appeal by the government, is to place him a second time 'in jeopardy of life or limb.'" 604 F.2d 769, 783 (2nd Cir. 1979). In reversing, the Supreme Court of the United States reaffirmed that the ...