Commonwealth v. Moore

• Decision Date: 16 November 1973
• Citation: 312 A.2d 422,226 Pa.Super. 58
• Parties: COMMONWEALTH of Pennsylvania v. Mary Ann MOORE, Appellant. COMMONWEALTH of Pennsylvania v. Grover BATTLE, Appellant.
• Court: Pennsylvania Superior Court

312 A.2d 422

226 Pa.Super. 58

COMMONWEALTH of Pennsylvania v. Mary Ann MOORE, Appellant.

COMMONWEALTH of Pennsylvania v. Grover BATTLE, Appellant.

Superior Court of Pennsylvania.

November 16, 1973.

Vincent J. Ziccardi, Defender, Jonathan Miller Chief, Appeals Div.,John W. Packel, Philadelphia, for appellants.

Arlen Specter, Dist. Atty., Milton M. Stein, Asst. Dist. Atty Chief, Appeals Div., James T. Ranney Asst. Dist. Atty., Asst. Chief, Appeals Div., Philadelphia for appellee.

Before WRIGHT, President Judge, and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and SPAETH, JJ.

CERCONE, Judge:

These represent two appeals in two separate and unrelated cases which have been consolidated for purposes of appeal because each involve the identical issue. That issue is whether or not the Common Pleas Court in a trial de novo following an appeal as of right from a Municipal Court summary conviction can impose a sentence greater than that originally imposed in the Municipal Court without placing upon the record facts justifying such increase in sentence.

Defendants contend that the United States Supreme Court decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1971) is applicable. The Supreme Court there held that the trial court after successful appeal by the defendant could not, upon retrial, increase the sentence that it had imposed at the first trial unless it had affirmatively placed upon the record its reasons for such increase, which '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.' The court there stated that a defendant must feel free to avail himself of his constitutional right to appeal or collaterally attack his conviction without apprehension or fear that vindictiveness on the part of the trial judge may result in an increased sentece upon remand for retrial.

It is the defendant's contention that though in this case it is a different court (Common Pleas Court) which is increasing the sentence imposed by another court (Municipal Court) after trial de novo granted as a matter of right, that nevertheless, the reasoning and theory behind the North Carolina v. Pearce decision apply to their case. Defendants contend 'If a defendant's choice to exercise his right to a new trial in Common Pleas Court pursuant to the Pennsylvania Constitution Schedule Article 5, § 16(r) (iii) must be weighed against the possibility of increased punishment following the de novo trial, the state has in fact put a 'price on appeal."

The Commonwealth, however, contends that the North Carolina v. Pearce decision has no applicability where the second sentencing is by a different court after trial de novo as of right without allegation of error. It contends that the United States Supreme Court's recent decision in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) is governing. The Supreme Court there held that the imposition of an increased sentence by a different court after a trial de novo under the Kentucky two-tier court system did not constitute a denial of due process. The defendants would distinguish the Colten v. Kentucky decision on the basis of the alleged differences between the statutory framework of the Kentucky two-tier system and the Philadelphia two-tier system. However, we find no basis for such distinction and hold that the United States Supreme Court's reasoning in that Ketucky case is here applicable. The Court there stated: 'The right to a new trial is absolute. A defendant need not allege error in the inferior court proceeding. If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean. Ky.Rule Crim.Proc. 12.06. Prosecution and defense begin anew. By the same token neither the judge nor jury that determines guilt or fixes a penalty in the trial de novo is in any way bound by the inferior court's findings or judgment. The case is to be regarded exactly as if it had been brought there in the first instance. A convicted defendant may seek review in the state appellate courts in the same manner as a person tried initially in the general criminal court Ky.Rev.Stat. § 23.032 (1970). However, a defendant convicted after a trial or plea in an inferior court may not seek ordinary appellate review of the inferior court's ruling. His recourse is the trial de novo. (407 U.S. at p. 115, 92 S.Ct. at p. 1958)

'. . . The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.

'We note first the obvious: that the court which conducted Colten's trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly. Nor is the de novo court even asked to find error in another court's work. Rather, the Kentucky court in which Colten had the unrestricted right to have a new trial was merely asked to accord the same trial, under the same rules and procedures, available to defendants whose cases are begun in that court in the first instance. . . . We see no reason, and none is offered, to assume that the de novo court will deal any more strictly with those who insist on a trial in the superior court after conviction in the Quarterly Court than it would with those defendants whose cases are filed originally in the superior court and who choose to put the State to its proof in a trial subject to constitutional guarantees.

'It may often be that the superior court will impose a punishment more severe than that received from the inferior court. But it no more follows that such a sentence is a vindictive penalty for seeking a superior court trial than that the inferior court imposed a lenient penalty. The trial de novo represents a completely fresh determination of guilt or innocence. It is not an appeal on the record.' Colten v. kentucky, supra, 407 U.S. at pages 116--117, 92 S.Ct. 1953, 32 L.Ed.2d 584)

We held the above language to be applicable to the facts of the instant case and do not find the Kentucky system distinguishable from the Philadelphia system as to the aspects which the court found governing in Colten v. Kentucky. Nor can we agree with defendant that we should disregard the Colten decision as indicating 'a declining federal standard of due process' which the Pennsylvania courts are not bound to follow in setting their standards in excess of those set by the Federal Government. The Colten view is that no danger of vindictiveness inherently exists in the two-tier court system and we agree with this view.

It is our holding that where, as in the instant case, defendant takes an appeal as of right from a summary judgment, without allegations of error, to a higher court before which his case is tried De novo without reference to the prior summary proceeding and without reference to the sentence imposed by the municipal court, the reasoning supporting Colten v. Kentucky rather than that supporing North Carolina v. Pearce is applicable and governing.

An additional issue remains as to defendant Mary Ann Moore. She claims her 'guilty pleas' in the Common Pleas Court at her trial de novo was coerced by a threat of an unwarranted, increased sentence. We have carefully read the remarks of the trial judge and cannot construe them other than an imparting of information to acquaint defendant with the possibility which did exist under the law concerning an increased sentence.

Judgments of sentence affirmed.

SPAETH, J., files a concurring and dissenting opinion.

HOFFMAN, J., files a dissenting opinion in which SPAULDING, J., joins.

SPAETH, Judge (dissenting and concurring).

Under the Act of October 17, 1969, P.L. 259, § 18, as amended by the Act of July 11, 1971, P.L. ---, No. 45, § 1, 17 P.S § 711.18, a defendant is not entitled to a jury trial in the Municipal Court; however, if convicted by the Municipal Court judge, he may appeal to the Court of Common Pleas where he will receive a trial De novo, which, if he chooses, may be a trial by jury. No doubt some defendants will be deterred from appealing and thereby from exercising their right to a jury trial if the Common Pleas judge can, without articulating any special reasons, increase the Municipal Court sentence. I disagree with Judge Hoffman's view that, because some defendants will be thus deterred, we should hold that the Common Pleas judge may not increase the sentence unless there is 'objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original (Municipal Court) sentencing proceeding'. North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969).

The reason for providing a trial De novo in the Court of Common Pleas is to protect the defendant's right to a trial by jury. This reason, however, may not be invoked by a defendant such as appellant Battle; he cannot maintain that his exercise of his right to a trial by jury was deterred, or 'chilled', by the possibility that the Common Pleas judge might increase his Municipal Court sentence, for after appealing to the Court of Common Pleas he waived his right to trial by jury.

Putting aside the issue of standing, I see no reason to distinguish between, on the one hand, a defendant whose case is so serious that it must start in the Court of Common Pleas, and on the other hand, a defendant whose case, being less serious, starts in the Municipal Court. The Common Pleas defendant and the Municipal Court defendant should be subject to the Same possibility of a sentence within the statutory maximum...