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filed: December 26, 1989.


Appeal from the Judgment of Sentence July 11, 1988 in the Court of Common Pleas of Montgomery County, Criminal Division, Nos. 3583, 3583.1, 3583.2, 3583.3, 3583.4 of 85.


Michael E. Furey, Norristown, for appellant.

Thomas E. Waters, Jr., Dist. Atty., Blue Bell, for Com., appellee (submitted).

Cavanaugh, Beck*fn* and Cercone, JJ. Cavanaugh, J., files dissenting opinion.

Author: Beck

[ 390 Pa. Super. Page 78]

This case presents significant questions concerning the power of a judge to increase the severity of the punishment for a crime after the initial sentencing hearing.

The relevant facts are not in dispute. On August 11, 1985, Ronald Walker gained entry to the home of his estranged wife and held her hostage at gunpoint for five hours. Following a jury trial in the Court of Common Pleas of Montgomery County, Walker was convicted of possessing an instrument of crime, simple assault, recklessly endangering another person, unlawful restraint, and criminal trespass. 18 Pa.Cons.Stat.Ann. ยงยง 907(b), 2701(a)(1), 2705, 2902, 3503(a)(1) (Purdon 1983). Post-verdict motions were denied. On December 4, 1986, the trial court imposed the following sentences: one to five years imprisonment for unlawful restraint; one to five years imprisonment for possessing an instrument of crime; one to two years imprisonment for recklessly endangering another person; one to two years imprisonment for simple assault; and seven years probation for criminal trespass. The court specified that all sentences were to run consecutively so that the aggregate sentence included minimum and maximum terms of four to fourteen years incarceration as well as an additional term of seven years probation.

Walker initially filed a notice of appeal but the appeal was discontinued. Walker then filed a pro se petition under

[ 390 Pa. Super. Page 79]

    the Post Conviction Hearing Act (PCHA).*fn1 New counsel was appointed and a supplementary petition was filed. Among the issues presented was a claim that Walker's conviction for simple assault merged with his conviction for recklessly endangering another person.

On July 11, 1988, Walker appeared at a PCHA hearing before the same judge who had presided at trial and at his original sentencing hearing. The judge agreed that he had committed an error of law by imposing separate sentences for recklessly endangering another person and simple assault, so he vacated judgment of sentence on all counts. The judge reimposed identical sentences for unlawful restraint, possessing an instrument of crime, and recklessly endangering another person. However, he replaced the one to two year sentence of imprisonment for simple assault and the probationary sentence for criminal trespass with a one to seven year sentence of imprisonment for criminal trespass. Thus, Walker's total period of potential incarceration increased from four to fourteen years to four to nineteen years. Walker filed a motion to modify the new sentence that was denied. He then filed a timely notice of appeal with this court.

Appellant challenges the legality of his new sentence under the due process and double jeopardy clauses of the federal constitution.*fn2 These claims merit serious consideration.

[ 390 Pa. Super. Page 80]

One can imagine Walker's surprise and confusion at the PCHA hearing. He was first told that his petition for relief had been granted as to his sentencing claim. He was then notified that as a result of filing a meritorious PCHA petition, he would now be subject to an additional five years imprisonment. We conclude, nonetheless, that under the unusual facts of this case, the PCHA court did not exceed the limits of its authority by increasing appellant's maximum prison term. Accordingly, we affirm the enhanced sentence.


Appellant contends that the PCHA court violated the due process protection against enhanced sentences first recognized by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The Pearce Court held that once a defendant has been sentenced, his sentence may be increased only if the longer sentence was not motivated by judicial vindictiveness. The Court further emphasized that "since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." Id., 395 U.S. at 725, 89 S.Ct. at 2080 (footnote omitted). In Pearce, the defendants successfully appealed their judgments of sentence and were reconvicted and given increased sentences following a new trial. The Court viewed these increases as unconstitutional penalties that had been imposed upon the defendants for exercising their right to judicial review.

The instant case arises in an unusual procedural posture. We deal here with a defendant who did not pursue an appeal from his original judgment of sentence but instead received a new sentencing hearing after filing a PCHA petition. Pearce, however, is not limited to situations involving

[ 390 Pa. Super. Page 81]

    resentencing after a second trial. See Commonwealth v. Greer, 382 Pa. Super. 127, 141 n. 7, 554 A.2d 980, 987 n. 7 (1989) (Pearce applies to harsher sentence imposed by trial court after trial court granted post-trial request for resentencing); Commonwealth v. Maly, 384 Pa. Super. 369, 558 A.2d 877 (1989) (Pearce applies to harsher sentence imposed by trial court after appellate court vacated original sentence and remanded for resentencing). Pearce stands for the general proposition that defendants may not be coerced into foregoing constitutional, statutory, or procedural rights by instilling fear that a harsher penalty may be imposed in retaliation for pursuing those rights. Commonwealth v. Rocco, 375 Pa. Super. 330, 336, 544 A.2d 496, 499 (1988). Due process can no more tolerate the prospect of a defendant being punished for seeking a reduction in his sentence on collateral review than the prospect of a defendant being punished for seeking a new trial on direct appeal.

We must therefore consider whether appellant's new sentence may have been tainted by judicial vindictiveness. In some cases, the fact that a sentencing authority punished the defendant for an impermissible reason will be apparent from the record. However, in most cases, it is exceedingly difficult to establish that a judge has retaliated against a defendant for exercising legal rights. See Pearce, 395 U.S. at 725 n. 20, 89 S.Ct. at 2080 n. 20. The Pearce Court addressed this problem by establishing, subject to certain exceptions, a presumption that an increase in sentence is the product of an improper motive on the part of the sentencing authority. We must examine whether this presumption of judicial vindictiveness applies to the instant case, and if it does, whether the trial court rebutted the presumption.

Whether a presumption of vindictiveness arises depends upon the factual context in which resentencing has taken place. The presumption does not apply in the absence of a reasonable likelihood that the increase in sentence was the ...

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