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filed: May 3, 1989.


Appeal from the judgment of sentence of February 16, 1988, in the Court of Common Pleas, Criminal Division, Erie County, No. 1400 of 1986.


Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

Ernest J. Disantis, Jr., Assistant District Attorney, Erie, for Com., appellee.

Brosky, Rowley and Montemuro, JJ.

Author: Rowley

[ 384 Pa. Super. Page 370]

John David Maly appeals from a judgment of sentence of 12 to 28 years incarceration imposed following his plea of nolo contendere to a charge of involuntary deviate sexual intercourse and pleas of guilty to charges of indecent assault, endangering the welfare of children, and corruption of minors. Appellant had originally been sentenced to 10 to 25 years incarceration for these same crimes. That sentence

[ 384 Pa. Super. Page 371]

    was vacated by a panel of this Court and the case was remanded for resentencing. 375 Pa. Super. 619, 541 A.2d 30.

Appellant's first challenge is to the legality of his sentence. He argues that because the trial court has failed to affirmatively state on the record any new conduct on the part of appellant occurring after the time of the original sentencing proceeding which would justify the increase in his second sentence, he has been exposed to double jeopardy, as defined by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The trial court had stated at the second sentencing proceeding that the increased sentence was based upon a psychological evaluation which was performed upon appellant following the remand by this court. Appellant contends that the conclusions made in that report echoed the trial court's prior conclusions at the original sentencing proceeding. Therefore, he argues, the trial court imposed a more severe sentence based upon identical information and conclusions regarding his character and rehabilitative needs, violating the proscription against double jeopardy. We agree.

In North Carolina v. Pearce, supra, the Supreme Court considered the question of what constitutional limitations there are upon the power of a judge to impose a longer prison sentence on remand than the defendant originally received at the first sentencing proceeding. The Court held that while a trial judge is not constitutionally precluded from imposing a sentence of greater duration, that longer sentence can only be imposed if it is clear that the longer sentence is not the result of judicial vindictiveness. The court recognized that the Due Process Clause of the Fourteenth Amendment required that a convicted defendant not be penalized for successfully seeking an appeal and being awarded a new trial. "[T]he very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to chill the exercise of basic constitutional rights." Id., 395 U.S. at 724, 89 S.Ct. at 2080, 23 L.Ed.2d at 668 (citation omitted). The court then set

[ 384 Pa. Super. Page 372]

    forth the following standard to be applied to test the validity of a sentence of longer duration imposed following a successful appeal:

In order to assure the absence of such a motivation, we have concluded that 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.

Id., 395 U.S. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670 (emphasis added).

The Supreme Court has reevaluated its position since Pearce. In Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986), the Court retreated from its previous position that only evidence of conduct occurring after the first sentencing proceeding was relevant and supportive of a longer second sentence. "Restricting justifications for a sentence increase to only events that occurred subsequent to the original sentencing proceedings could in some circumstances lead to absurd results." Id., 475 U.S. at 141, 106 S.Ct. at 980-81, 89 L.Ed.2d at 112 (emphasis in the original). The Court went on to describe a situation in which a defendant is convicted and sentenced on the basis of a burglary, apparently his first offense, to a short prison term, but that following his successful appeal and a second conviction after retrial, is found to have been in fact a convicted murderer using an ...

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