Appeal from Order of Superior Court entered March 8, 1985, at No. 51 Philadelphia, 1984, Affirming Order of Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, entered February 28, 1984, at C.P. Misc. 83-007973. Pa. Super. , A.2d (1985). Appeal from Order of Superior Court entered March 8, 1985, at No. 30 Philadelphia, 1984, Affirming Order of Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, entered February 28, 1984, at C.P. Misc. 83-011724. Pa. Super. , A.2d (1985).
John W. Packel Chief/Appeals Div., Leonard Sosnou, Philadelphia, for appellant.
Robert B. Lawler, Chief/Appeals Div., Gaele M. Barthold, Chief/Prosecution Appeals, Maxine J. Stotland, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
We consider here appeals from Orders of the Superior Court affirming the imposition of forty-eight hours' imprisonment
and $300.00 in fines for violation of section 3731(a)(1) and (a)(4) of the Pennsylvania Vehicle Code, 75 Pa.C.S. § 3731 (Supp. 1986). In the Sojourner appeal (No. 104 E.D. Appeal Docket 1985), we are called upon to consider whether a judge has power to suspend sentence under the penalty section of this provision. In the Burton appeal (No. 126 E.D. Appeal Docket 1985), we will consider the ancillary issue of whether the imposition of a heightened penalty pursuant to statutory requirements violates double jeopardy guarantees of the state and federal constitutions. For the reasons that follow, we conclude that the mandatory sentencing provisions of section 3731(a) preclude the sentencing court from imposing a discretionary suspension of sentence and that resentencing of appellants in accord with section 3731(e) does not eviscerate double jeopardy guarantees under the United States and Commonwealth Constitutions.
The facts in Commonwealth v. Sojourner and Commonwealth v. Burton are essentially the same in that both appellants were driving under the influence of alcohol and were charged with violations under Section 3731(a)(1) and (a)(4).*fn1 Both appellants were first offenders. They were tried and convicted in the Philadelphia Municipal Court and initially sentenced to a term of one year's probation on the condition that they receive treatment for alcoholism.
Upon petition of the Commonwealth, the Municipal Court subsequently vacated its original sentence in both cases and imposed a sentence of forty-eight hours' to eleven and one-half months' imprisonment and a $300.00 fine. Appellants then filed petitions for reconsideration of sentence, which were denied without a hearing. An appeal to the Court of Common Pleas of Philadelphia County questioning
the propriety of the change in sentence also proved unsuccessful.*fn2 Appeals were taken to the Superior Court, which upheld the Municipal Court's judgments of sentence. A Petition for Allowance of Appeal was filed in this Court ...