¶1Concurring and Dissenting Opinion by
¶2Although I concur in the Majority’s affirmance of appellant’s conviction, I would remand for resentencing because of irregularities in the sentencing procedure.
¶3The appellant and his co-defendant were originally tried and found guilty on June 12, 1972. Appellant’s motion for a new trial was granted by the court en banc on July 7, 1972. After his second trial ended in appellant’s conviction, but prior to sentencing, the trial court examined the transcript of the original trial and at the time of sentencing, confronted the appellant with his co-defendant’s testimony to the effect that appellant was the “ring leader” in the crime. Appellant contends that it was an abuse of discretion for the trial court to consider a conviction which had been overturned in determining appellant’s sentence.
¶4The United States Supreme Court faced an almost identical issue in United States v. Tucker, 404 U.S. 443 (1972). In Tucker, the judge sentenced the respondent to 25 years’ imprisonment, the maximum permissible under the applicable statute. At the time of sentencing, the *192judge considered three previous felony convictions. Subsequently, it was determined that two of the respondent’s prior convictions were invalid under Gideon v. Wainwright, 372 U.S. 335 (1963). The Court upheld the Ninth Circuit’s determination that “there was ‘a reasonable probability that the defective prior convictions may have led the trial court to impose a heavier prison sentence than it otherwise would have imposed.’ ” 404 U.S. at 445-446. Similarly, we have held that “ [w] here a conviction is set aside because legally invalid, the former proceeding is a nullity and leaves the indictments open and unsatisfied.” Commonwealth v. Davis, 203 Pa. Superior Ct. 79, 82, 198 A. 2d 649 (1964). See also Townsend v. Burke, 334 U.S. 736 (1948).
¶5In the instant case, the judge attempted to use a portion of an otherwise legally invalid trial record in reaching his decision to sentence appellant to a term of nine to twenty years’ imprisonment.
¶6Therefore, I would remand for resentencing without consideration of the original proceedings against appellant.
¶7Spaeth, J., joins in this opinion.