Commonwealth v. Mirra

220 Pa. Superior Ct. 393 (1971)

Commonwealth v. Mirra, Appellant.

Superior Court of Pennsylvania.

Argued June 15, 1971.

September 21, 1971.

Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.

*394 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.

OPINION BY HOFFMAN, J., September 21, 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. Superior Ct. 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).