¶1Dissenting Opinion by
¶2Appellant was tried before a jury on a six count indictment and was acquitted on the first five counts (failure to stop at the scene of an accident; failure to identify himself at the scene of an accident; failure to render assistance; assault; and resisting arrest). He was found guilty of possession of a prohibited offensive weapon, and was sentenced to serve 30 days in prison and to pay a fine of $100. The only issue on appeal is the validity of this sentence.
¶3*539The lower court’s own statements at the sentencing hearing show that appellant was sentenced for the very conduct of which he had been acquitted:
“THE COURT: Well, we’re cognizant of the fact that ignorance of the law is no excuse. The surrounding circumstances in this case, while this man was charged with violation of the Motor Vehicle Code and simple assault and resisting arrest and the jury brought in a verdict of not guilty as to those counts, it found him guilty of unlawful possession of a prohibitive [sic] weapon.
We’re satisfied from the circumstances that the defendant was certainly involved and knew what was going on when the officers gave chase and chased him around the buildings out there in Monroeville, and when they finally caught up with him and placed him under arrest that, of course, the jury found him not guilty on those charges, but they did find him guilty of possession of a prohibitive weapon; namely, a blackjack.
MR. ROSSETTI: Your Honor, I would ask that you reconsider your sentence in the light of the circumstances surrounding this case.
THE COURT: Well, the circumstances surrounding this case are the very reason, basically, that he is committed to jail for thirty days.” (Record at 12a, 13a)
¶4The majority reasons that because the sentence imposed is well below the statutory maximum for a misdemeanor of the first degree, it cannot be considered excessive. I do not agree. Any sentence, short or long, based upon charges of which a defendant has been acquitted, may be excessive. See Commonwealth v. Hewlett, 223 Pa. Superior Ct. 55, 296 A.2d 846 (1972) (reconsider*540ation of sentence ordered where after sentence a prior conviction known to sentencing judge is set aside).
¶5A similar issue was presented in Commonwealth v. Lockhart, 223 Pa. Superior Ct. 60, 296 A.2d 883 (1972) (Wright, P.J., and Watkins, J., dissented). There, the defendant had been convicted on two indictments. Concluding that only one offense was involved, we quashed one indictment and remanded for resentencing on the remaining convictions:
“As conviction on this one count was constitutionally invalid, the cause should be remanded for resentencing on the remaining valid convictions. Recently, Circuit Judge Friendly made a similar recommendation, saying: ‘When the invalidity of the conviction on one count which may have influenced the sentence becomes apparent on an appeal, whether on direct or collateral attack, the proper course is usually to vacate the sentences and remand for resentencing on the valid counts without consideration of the invalid ones.’ McGee v. United States, 462 F.2d 243, 246 (2d Cir. 1972).” Id. at 65, 296 A.2d at 886.
¶6See also Commonwealth v. Tisdale, 233 Pa. Superior Ct. 77, 83, 334 A.2d 722, 725 (1975) (concurring and dissenting opinion by Spaeth, J., joined by Hoffman, J.) I would therefore remand for resentencing.