concurring and dissenting:
I had thought it settled that if the lower court does not state its reasons for the sentence, the sentence will on appeal be vacated and the case remanded to afford the court an opportunity to resentence the defendant and to include a statement of reasons. Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Wertz, 252 Pa.Super. 584, 384 A.2d 933 (1978). The plurality opinion’s error in nevertheless refusing to vacate and remand is probably sufficiently noted by the President Judge’s citation, in his dissenting opinion, of Wertz. I think it in order, however, to add another, less succinct, dissent.
The plurality opinion’s citation of Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977), is inapposite, for the decision there, that the lower court did not have to state the reasons for the sentence, was overruled by the decision of the Supreme Court, reversing this court, in Commonwealth v. Riggins, supra, that the lower court did have to state the reasons.
The plurality attempts to avoid Riggins in three ways, all indefensible.
First, it says that the opinion of Mr. Justice ROBERTS in Riggins was “a plurality opinion.” Plurality opinion at 640. On the point at issue here, it was not a plurality but a majority opinion. Justice O’BRIEN joined Justice ROBERTS’s opinion without qualification. Justice POMEROY filed a concurring and dissenting opinion, but only because Justice ROBERTS had held the sentence in question excessive; on the point at issue here — the requirement that the lower court state the reasons for the sentence — Justice POMEROY said:
*54I fully agree with the decision of the Court that the time has come when we should require that a trial court, when it imposes judgment of sentence, place on the record its reasons for the imposition of the sentence chosen. [Here the Justice appended a footnote, to the effect that he considered this holding “totally prospective.”]
Id., 474 Pa. at 137, 377 A.2d at 151.
Justice MANDERINO also filed a concurring opinion. His only difference with Justice ROBERTS was that he would have ordered the defendant discharged. Otherwise, he said, he “join[ed] in the majority opinion of Mr. Justice ROBERTS.” Id., 474 Pa. at 139, 377 A.2d at 152. Thus, four Justices — ROBERTS, J., joined by O’BRIEN, POMEROY, and MANDERINO, JJ. — agreed that the lower court must state the reasons for the sentence.
Second, the plurality opinion suggests that the force of Riggins is somehow diminished by the fact that “it appeared . that the trial court might have been acting under a misapprehension as to the maximum permissible sentence . .” Plurality opinion at 640. I can only say that this suggestion is specifically repudiated by Riggins itself. In footnote 30 of his opinion, 474 Pa. at 136, 377 A.2d at 150, Justice ROBERTS observed that the fact that the trial court may have been under a misapprehension as to the maximum sentence “highlight[ed] the necessity for a statement of reasons [for the sentence]” (emphasis added).
Finally, the plurality opinion says that the sentence was imposed “prior to the decision in Riggins, and prior to the effective date of Rule 1405(b), and in these circumstances we fail to see how any useful purpose would be served by applying retroactively the requirement of an on-the-record statement of reasons for the sentence imposed.” Plurality opinion at 640. As noted above, Mr. Justice POMEROY, concurring in Riggins, was also of the opinion that its holding should be applied only prospectively. But that battle is lost. In Commonwealth v. Kostka, supra, not cited by the plurality, the Court held, only POMEROY and NIX, JJ., dissenting, that Riggins was to be applied retroactively; and *55in Commonwealth v. Wertz, supra, also not cited by the plurality, we recognized and followed Kostka.*
I concur in affirming the judgment of sentence in this case, however, because the Supreme Court, in Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978), has held that when, as here, an appellant seeks review of his sentence without first filing a petition for reconsideration of the sentence with the court below, the court on appeal must consider the sentence waived.
In Wertz, supra, I concurred, arguing that Riggins presented no issue of retroactivity, but merely reemphasized what “has long been established by the rules of the Supreme Court and of this court,” that is, “[t]he responsibility of the sentencing judge to state the reasons for the sentence.” Commonwealth v. Wertz, supra 252 Pa.Super. at 586, 384 A.2d at 935.