June 15, 1971.
September 21, 1971.
Criminal Law — Sentence — Increased sentence after second conviction upon retrial — Absence of statement of reasons in record for increase of sentence.
1. Defendant was tried and found guilty of aggravated assault and battery in the Philadelphia Municipal Court, and was sentenced to one year probation. Following a trial de novo in the court of common pleas, he was again found guilty. However, his sentence was increased to eighteen months on probation and an order of restitution of $300. No reasons for the increase in the sentence appeared in the record.
In was Held on appeal that the sentence of the court of common pleas be vacated and the sentence of one year probation reinstated.
2. Commonwealth v. Harper, 219 Pa. Super. 100, followed.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 540, Oct. T., 1971, from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1970, No. 1310, in case of Commonwealth of Pennsylvania v. Anthony Mirra. Judgment of sentence of eighteen months vacated and sentence of one year reinstated.
Indictment charging defendant with assault and battery and aggravated assault and battery. Before WRIGHT, J., without a jury.
Finding of guilty of aggravated assault and battery and judgment of sentence entered thereon. Defendant appealed.
Andrea C. Levin and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, with him George D'Ambrisio, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Argued June 15, 1971.
Appellant was tried and found guilty of aggravated assault and battery in the Philadelphia Municipal Court and sentenced to one year probation. As of right, pursuant to the provisions of Section 16(r)(iii) of the Schedule to the Judiciary Article of the State Constitution, appellant received a trial de novo in the Court of Common Pleas. He was again found guilty of assault and battery, however his sentence was increased to eighteen months on probation and an order of restitution of $300.
In Commonwealth v. Harper, 219 Pa. Super. 100, 280 A.2d 637 (1971), this Court held that, absent reasons appearing on the record, an appellant exercising his right of appeal in the Court of Common Pleas could not receive a higher sentence.
Accordingly, the judgment of sentence of eighteen months probation and restitution is vacated, and the sentence of one year probation is reinstated. Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971).