Commonwealth v. Henderson

• Decision Date: 05 October 1978
• Citation: 482 Pa. 359,393 A.2d 1146
• Parties: COMMONWEALTH of Pennsylvania v. Shirley HENDERSON, Appellant.
• Court: Pennsylvania Supreme Court

393 A.2d 1146

482 Pa. 359

COMMONWEALTH of Pennsylvania v. Shirley HENDERSON, Appellant.

Supreme Court of Pennsylvania.

October 5, 1978

Argued Jan. 17, 1978. [Copyrighted Material Omitted]

Klovsky, Kuby & Harris, William D. Harris Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H Goldblatt, Deputy Dist. Atty. for Law, Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.

OPINION

NIX, Justice.

Appellant Shirley Henderson, was convicted of involuntary manslaughter after a non-jury trial in the Court of Common Pleas of Philadelphia County. After post-trial motions were denied, appellant was sentenced to serve a maximum term of imprisonment of three years. No expressed minimum sentence was imposed in compliance with the Act of July 16, 1968, P.L. 349, § 1, 61 P.S. § 566, which directed that sentencing courts should not set minimum sentences for women who were being committed to the State Correctional Institution at Muncy. Upon appeal, the Superior Court vacated the judgment of sentence and remanded for reconsideration of sentence. Commonwealth v. Henderson, 234 Pa.Super. 525, 341 A.2d 195 (1975). The basis for the Superior Court's order was the trial court's erroneous belief that the maximum sentence was five years whereas the maximum sentence was, in fact, three years. The Superior Court concluded that this mistaken belief might have influenced the sentence actually imposed. ^[1]

Upon resentencing, the trial court imposed a sentence of six months to three years. Appellant again appealed to the Superior Court, this time contending that the second sentence represented an enhanced penalty. The Superior Court affirmed the trial court without an opinion and we granted appellant's request for review.

In the interim between the imposition of the original sentence and the resentencing, this Court handed down its decision in Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974). In Butler, we held that section 1 of the Act of July 16, 1968, Supra insofar as it required trial courts not to fix minimum sentences when sentencing women, was unconstitutional. Thus any sentence of a woman to the State Correctional Institution at Muncy after the date of our decision in Butler would properly contain a minimum as well as a maximum sentence.

Appellant argues before us that the imposition of a minimum sentence not previously imposed is an increase in the punishment violative of the double jeopardy protection or the due process provision. The Commonwealth responds by charging the issue as framed in the appeal before this Court is broader than the grounds relied upon in the Petition for Allowance of Appeal we granted. Specifically, it is contended that appellant had restricted her request for review to a determination of a possible double jeopardy violation and therefore we should not consider the present assertion of a due process violation.

We agree with the general proposition that orderly and efficient appellate review is best served by confining the issues considered to "only the questions set forth in the petition, or fairly comprised therein, . . ." Pa.R.App.Proc. 1115(a)(3). To proceed otherwise would result in precluding the opposing party an opportunity of setting forth their reasons why the additional arguments should not have been considered on appeal. Furthermore, such a practice would invite the introduction of issues and theories not presented to the courts below. See Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). We also agree that double jeopardy and due process questions present traditionally distinguishable areas of constitutional concern directed at eradicating different evils. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). ^[2] It would therefore be tantamount to ignoring the purposes of Rule 1115(a)(3) to rationalize that an argument framed entirely in terms of double jeopardy was at the same time raising the issue of due process concerns. In appellant's petition for review the issue was framed solely on the grounds of double jeopardy. ^[3] We are satisfied that the position urged by the Commonwealth has merit and we will limit our consideration to the asserted double jeopardy violation. ^[4]

The first issue to be considered is whether the fixing of a minimum sentence is an enhancement of the sentence originally imposed. Under the law at the time of the entry of the original sentence, the imposition of a sentence without a minimum term being fixed for a female committed to Muncy, had the effect of making her eligible for parole immediately upon incarceration. Act of August 6, 1941, P.L. 861, As amended, 61 P.S. §§ 331.21, 331.31. See Commonwealth v. Butler, supra, 458 Pa. at 295, 328 A.2d at 855; Commonwealth v. Daniels, 430 Pa. 642, 647 n.*, 243 A.2d 400, 402 n.6 (1968). Thus the imposition of a six month minimum defers parole eligibility for a six month period. Commonwealth v. Butler, supra. ^[5]

The Commonwealth argues that since this Court has held that the legal sentence is the maximum sentence, Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780, 786 (1977); Commonwealth v. Daniels, supra, 430 Pa. at 647, 243 A.2d at 403; Commonwealth ex rel. Carmelo v. Smith, 347 Pa. 495, 496, 32 A.2d 913, 914 (1943); Commonwealth v. Kalck, 239 Pa. 533, 87 A. 61 (1913), an adjustment of the minimum sentence should be of no consequence for double jeopardy. ^[6] In Sutley, proceeding on the theory that the maximum sentence is the real or controlling sentence, we reasoned that a subsequent legislative alteration of a minimum sentence Might not offend the rules of the inviolability of final judicial judgments. Commonwealth v. Sutley, supra, 474 Pa. at 268, 378 A.2d at 786. In contrast however, in Butler, this Court recognized that disparity in our law of sentencing in fixing minimum sentences depending upon the sex of the offender was sufficiently significant as to violate the equal rights amendment to the State Constitution. P.S.Const. art. I, § 28. Although theoretically the essence of the sentence is the length of the State's control over the offender and the setting in which that control is to be exercised is more of an administrative concern, it would be unrealistic to contend that the time of parole eligibility is not of sufficient moment to be embraced within the protection afforded by the double jeopardy guarantee.

"Parole may mean an opportunity to start anew in society, and may be a determinative step in a person's 'rehabilitative, adjustment and restoration to social and economic life.' " (cites omitted) Commonwealth v. Butler, supra, 458 Pa. at 297, 328 A.2d 856.

The appellee also cites the fact that appellant argued in her first appeal to the Superior Court, Supra, that she had been prejudiced by the sentencing court's failure to impose a minimum. It is urged that she cannot now complain where she received that which she requested. This argument misses the mark because it ignores the fact that the court to which it was addressed failed to consider this objection. ^[7] There is nothing in the record of the resentencing which would suggest that she at that time waived an objection to the imposition of a minimum sentence. At the time of the reconsideration of sentence (August 17, 1975) our rules did not provide for a further review of sentences at the trial level. ^[8]

Having concluded that the imposition of a minimum sentence where the original sentence did not contain a minimum sentence is an enhancement of the punishment and that the appellant has properly preserved this issue for review, we must now determine whether either the federal or state constitutional double jeopardy provisions have been offended.

The double jeopardy protection afforded by the Fifth Amendment is threefold. ^[9] It protects against a second prosecution for the same offense after acquittal. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). It protects against a second prosecution for the same offenses after conviction. In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889). And it protects against multiple punishment for the same offense. United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 75 L.Ed. 354 (1931); Ex parte Lange, 85 U.S. 163, 18 Wall. 163, 21 L.Ed. 872 (1873). Thus the question presented is whether the enhancement of the penalty which occurred in this case offends the prohibition against multiple punishment. In North Carolina v. Pearce, supra, the Court held that the double jeopardy protection does not bar the imposition of a more severe punishment after a second conviction had been originally set aside at the behest of the defendant. An analysis of the Pearce decision forces the conclusion that the result was dictated by that court's strong adherence to the principle announced in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896).

"Although the rationale . . . has been variously verbalized, it rests ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean. . . . , so far as the conviction itself goes, and that part of the sentence that has not yet been served, it is no more than a simple statement of fact to say that the slate has been wiped clean. The conviction has been set aside, and the unexpired portion of the original sentence will never be served. A new trial may result in an acquittal. But if it does result in a conviction, we cannot...