¶1concurring and dissenting:
¶2I agree with the Majority that the evidence was insufficient to convict appellant of theft by unlawful disposition but sufficient to convict him of theft by receiving stolen property. However, I do not believe that the Majority addresses the issue of double jeopardy which I discuss herein. Therefore, I dissent.
¶3Normally, under Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972), when the invalidity of a conviction on one count which may have influenced the sentence on another count becomes apparent on appeal, the proper course is to vacate the sentences and to remand for resentencing on the valid counts without consideration of the invalid'ones. However, in the instant case, the trial court stated that the counts of theft by receiving stolen property merged into the counts of theft by unlawful disposition. Accordingly, the sentence read as follows:
“Count One: Defendant is to undergo imprisonment at the State Correctional Institution at Rockview for a period the minimum of which shall be one year and the maximum of which shall be five years, .
*415“Count Two merges with Count One.
“Count Three: Defendant is placed on probation subject to the supervision of the Adult Probation Department of Lycoming County for a period of five years to begin at the expiration of the Sentence imposed in Count One .
“Count Four merges with count three.”
¶4Thus, the trial court did not impose any sentence at all on the counts of theft by receiving stolen property nor did it suspend sentence on those counts as it could have.
¶5The Fifth Amendment to the United States Constitution provides: “ . . . [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb; . ” The guarantees of this clause are incorporated by the Due Process Clause of the Fourteenth Amendment and are therefore available to a defendant in a state criminal proceeding. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). “It is clearly the law in Pennsylvania that a ‘modification of a sentence imposed on a criminal defendant which increases the punishment constitutes further or double jeopardy’ ”. Commonwealth v. Silverman, 442 Pa. 211, 215, 275 A.2d 308 (1971); Commonwealth v. Tomlin, 232 Pa.Super. 147, 149, 336 A.2d 407, 408 (1975).
¶6As Pennsylvania courts have noted several times: “ ‘[t]he possibility of abuses inherent in broad judicial power to increase sentences outweighs the possibility of windfalls to a few prisoners,’ 367 F.2d 368 at 370.” Commonwealth v. Allen, 443 Pa. 96, 104, 277 A.2d 803, 807 (1971) (citing United States v. Sacco, 367 F.2d 368, 370 (1966)). Commonwealth v. Thomas, 219 Pa.Super. 22, 280 A.2d 651 (1971); Commonwealth v. Pristas, 222 Pa.Super. 254, 295 A.2d 114 (1972).
¶7The constitutional protection against more than one trial is equally applicable to the number of sentences that may be pronounced on the same verdict. An increase in a sentence upon remand would constitute a further punishment for the same prior conviction and would violate the provisions of the double jeopardy clause. Therefore, in the instant case, I *416would not remand for resentencing on the charge of theft by receiving stolen property, because any sentence imposed by the trial court would be an increase in punishment and thus a violation of the double jeopardy provision of the 5th Amendment to the United States Constitution.
¶8I would vacate the judgment of sentence for theft by unlawful disposition; affirm the judgment of sentence for theft by receiving stolen property; and order appellant discharged.