Commonwealth v. Goldhammer

OPINION OF THE COURT

FLAHERTY, Justice.

The Commonwealth, appellant herein, asks us to remand this matter to permit the trial court to alter sentences which were legally imposed on some informations because of a subsequent appellate court ruling discharging appellee on a different information on which a jail term had been imposed. A brief review of the procedural history is in order.

Appellee Benjamin Goldhammer was charged in 168 informations, at Nos. 1857-2024 December Term, 1979, with 56 violations of 18 Pa.C.S.A. § 3921 (theft by unlawful taking or disposition, a felony of the third degree), 56 violations of 18 Pa.C.S.A. § 4101 (forgery, a felony of the third degree) and 56 violations of 18 Pa.C.S.A. § 3927 (theft by failure to make required disposition, a felony of the third degree). The charges arose out of Goldhammer’s practice over a period of slightly over 4 years, from November 29, 1974 through January 26, 1979, and while he was controller for the victim company, of forging the signature of one of the authorized signatories for the corporation and either cashing checks or depositing them into his own checking account. Goldhammer’s employer suffered a loss of over $220,000.

After a bench trial before the Honorable Michael E. Wallace, in the Court of Common Pleas of Philadelphia, Goldhammer was acquitted on all the informations charging violations of 18 Pa.C.S.A. § 3927. He was convicted on all other informations and sentenced to consecutive terms of imprisonment of 1-5 years each on one information charging theft by unlawful taking and one information charging forgery. Sentencing on all other informations was suspended. Goldhammer’s petition for modification of sentence was granted and he was subsequently sentenced to 2-5 years imprisonment on the theft conviction and 5 concurrent years of probation on the forgery conviction.

Goldhammer appealed to Superior Court.¹ All 34 convictions for theft by unlawful taking, for incidents which occurred on or before September 23, 1977, were reversed on grounds prosecution was barred by the statute of limitations, and Goldhammer was discharged as to those informations. All other judgments of sentence were affirmed.

The instant controversy arose because the only conviction for which Goldhammer received a jail term was among those which were reversed. The Commonwealth filed a petition for reargument, requesting Superior Court to remand the record to the sentencing court for resentencing in light of Superior Court’s disposition. The petition for reargument was denied.

We granted the Commonwealth’s petition for allowance of appeal and affirmed Superior Court’s reversal of the theft convictions.² We declined to remand the matter for resentencing on grounds the double jeopardy clause bars resentencing under these circumstances.

This matter is before us on remand from the Supreme Court of the United States. Their order states:

[B jecause the Pennsylvania Supreme Court held that resentencing was barred by the Double Jeopardy Clause, there was no need to consider below whether the Pennsylvania laws in effect at the time allowed the state to obtain review of the sentences on the counts for which the sentence had been suspended. We reverse and remand the case to the Supreme Court of Pennsylvania for a determination of that issue, and for further consideration of this case in light of DiFrancesco, [449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)].

Having done so, as will be discussed infra, we reverse our original order denying resentencing.

In DiFrancesco, the Supreme Court of the United States addressed the constitutionality of a provision of the Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 922, 18 U.S.C.S. § 3576, which authorized government appeals of sentences imposed upon special offenders. The Court of Appeals had dismissed the government’s appeal, concluding that “to subject a defendant to the risk of substitution of a greater sentence, upon an appeal by the government, is to place him a second time ‘in jeopardy of life or limb.’” 604 F.2d 769, 783 (2nd Cir.1979). In reversing, the Supreme Court of the United States reaffirmed that the constitutional guarantee against double jeopardy protects against (1) a second prosecution for the same offense after conviction or acquittal and (2) multiple punishments for the same offense. 449 U.S. at 129, 101 S.Ct. at 433, 66 L.Ed.2d at 340, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664. The Court further noted:

The Double Jeopardy Clause is not a complete barrier

to an appeal by the prosecution in a criminal case. ‘[W]here a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended.’ [Citations omitted.] ... [T]he Government’s taking a review of respondent’s sentence does not in itself offend double jeopardy principles just because its success might deprive respondent of the benefit of a more lenient sentence.

449 U.S. at 132, 101 S.Ct. at 434, 66 L.Ed.2d at 342. Thus, a criminal sentence is not accorded constitutional finality and conclusiveness similar to that which attaches to an acquittal, and the review of Goldhammer’s sentence, sought by the Commonwealth, does not in itself violate federal standards of double jeopardy. We decline to extend protection against double jeopardy under the Pennsylvania constitution to preclude the Commonwealth’s claim for relief in this case.

The remand order requires us to determine whether the Commonwealth has the power to challenge Gold-hammer’s sentence on appeal. It is well settled in this jurisdiction that “the Commonwealth has no right to appeal from an adverse ruling in the trial court, unless a pure question of law is involved, and that the Commonwealth may not appeal if the action complained of is based on an admixture of law and fact.” Commonwealth v. Marks, 442 Pa. 208, 275 A.2d 81 (1971), Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971). We decline, however, to extend the rationale of those cases to the matter sub judice, as it was Goldhammer, himself, who originally appealed all the judgments of sentence imposed in the trial court. Having done so, Goldhammer voluntarily assumed the risk of all the attending repercussions, including the possibility that the Commonwealth would seek resentencing in the event appellate review resulted in disruption of the original sentencing plan, to wit, reversal of the only jail term imposed. We hold therefore, that where a defendant appeals a judgment of sentence, he accepts the risk that the Commonwealth may seek a remand for resentencing thereon if the disposition in the appellate court upsets the original sentencing scheme of the trial court.

The power to grant the relief sought by the Commonwealth is vested in our appellate courts by virtue of 42 Pa.C.S.A. § 706 which provides:

An appellate court may affirm, modify, vacate, set aside or reverse any order brought before it for review, and may remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances.

Certainly a remand to reconsider a sentence, where the disposition by an appellate court has altered the sentencing scheme of the trial court, is within the purview of this statutory provision. Where one, convicted of several crimes, successfully challenges his judgment of sentence on appeal, remand for resentencing “may be just under the circumstances,” as it may further the sentencing court’s plans for protection of society from future criminal activity and rehabilitation of the criminal and “reduce the possibility of disparate and irrational sentencing,” United States v. Busic, 639 F.2d 940, 948 (1981), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422. As aptly stated by the United States Court of Appeals for the Third Circuit, “When a defendant challenges one of several interdependent sentences, he, in effect, challenges the entire sentencing plan.” Id at 947 n. 10.

Having established that a remand for reconsideration of sentence is within the power of our appellate courts and does not violate the protections of the double jeopardy provisions of the United States or Pennsylvania constitutions, we turn our attention to the propriety of such an order in this case.

The trial court’s sentencing scheme in this matter is vague at best. As noted in our first opinion in this case, the fact that the trial court chose to impose a jail term on only one of the convictions, which was the oldest of the charges being challenged on statute of limitations grounds, invites the conclusion that the court did not intend Goldhammer to serve a jail term at all. On the other hand, review of the transcript from the hearing on the motion to modify sentence manifests a clear intention that Goldhammer serve a jail term. The motion to modify was primarily an attack upon Goldhammer’s sentence to a term of imprisonment. While the court did modify one sentence from a term of imprisonment of 1-5 years to a term of 5 years’ probation, the sentence of imprisonment on the other information was modified from 1-5 years to 2-5 years. The reason given was the court’s belief that this modification would accelerate Goldhammer’s eligibility for parole consideration. The court, emphasizing that the circumstances of the crime called for punishment, rejected the plea that Goldhammer be spared any imprisonment. Under the circumstances, we accept the Commonwealth’s invitation to remand the matter to the sentencing court for reconsideration in light of Gold-hammer’s discharge, on appeal, on the only information where a jail term was imposed.

Goldhammer argues that remand now for resentencing is barred by double jeopardy because he has already commenced serving his probationary sentence. After this Court’s decision was rendered, and during the pendency of the Commonwealth’s petition for writ of certiorari, the record was remanded to Common Pleas Court in accordance with Pa.R.A.P. 2572. Upon receipt of the record, Common Pleas Court ordered Goldhammer to surrender for commitment on his sentence. The Commonwealth immediately filed a petition in this Court for return of the record here, but the petition was not granted until November 22, 1985. In the interim, on June 25, 1985, Goldhammer was ordered by the Honorable Edward Blake to commence serving his probationary sentence. Goldhammer argues that remand for resentencing would constitute an impermissible increase in his sentence which is barred by the double jeopardy clause.

We reject Goldhammer’s suggestion that resentencing in accordance with the original sentencing scheme announced by Judge Wallace constitutes an increase in his sentence. On the contrary, the original sentence included a 2-5 year jail term, and a resentence to the same 2-5 year jail term could not constitute an increase at all. It would merely be an imposition of the same term which was originally imposed, and which was well within the bounds set by the legislature for Goldhammer’s felonious conduct.

The order of Superior Court is reversed and the matter is remanded to the Court of Common Pleas for reconsideration of sentence.

Reversed and remanded.

NIX, C.J., files a dissenting opinion which is joined by ZAPPALA, J.

1 . Goldhammer's notice of appeal included all the informations, including those where he was acquitted.

2 . Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985), rev’d, Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985).