concurring:
I join with the majority in holding that the fifth amendment double jeopardy clause does not bar Klobuchir’s trial for first degree murder after his guilty plea and sentence for third degree murder, a lesser included offense, have been vacated. See Hawk v. Berkemer, 610 F.2d 445 (6th Cir. 1979); United States v. Williams, 534 F.2d 119 (8th Cir.) cert. denied, 429 U.S. 984, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976); Commonwealth of Pa. v. Klobuchir, 486 Pa. 241, 248-53, 405 A.2d 880, 885-87 (1979).
As I understand his brief, however, appellant raises two additional constitutional arguments on appeal: appellant contends that his trial for first degree murder violates his fourteenth amendment rights to due process and equal protection because the prosecution was vindictively motivated.1 While due process and equal protection arguments *972often accompany double jeopardy claims in challenging the constitutionality of a trial for a more serious offense or the retrial and stricter sentencing for the same offense, see, e. g., Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Miracle v. Estelle, 592 F.2d 1269 (5th Cir. 1979), as “historically and analytically distinct areas of constitutional concern,” Klobuchir, 486 Pa. at 246, 405 A.2d at 884, citing, Pearce, 395 U.S. at 719, 89 S.Ct. at 2077, these issues must be raised separately at each level of state appeal. If not, they are waived under Pennsylvania law. See Pa.R.Crim.P. 306; Pa.R.App.P. 302(a).
Without some indication as to why the Pennsylvania procedure is constitutionally defective, I agree with the majority that we cannot permit appellant to bypass the state procedures and raise these issues upon application for a writ of habeas corpus. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Therefore, because appellant waived his due process and equal protection arguments by failing to raise them properly in the state courts, I would reject those claims.
Accordingly, I concur with the majority that the district court’s judgment should be affirmed.
. Though inartfully, the appellant does argue: By reindicting the Petitioner for a more serious offense on the present case, the prosecution has opened the petitioner up to a much harsher sentence due to the fact that he has exercised his constitutional rights under the Post Conviction Hearing Act. Petitioners in general will now be faced with the non-choice of either forfeiting their appellate rights or being vulnerable to harsher liability. Prosecutors will be capable of discriminatory interference with the due process of the law. And as this Court indicated in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), an “inherent vindictiveness” will now turn on the petitioner who attempts to realize his constitutional rights.
Appellant’s Brief at 6-7.
Appellant raised the due process and equal protection arguments for the first time on appeal before the Pennsylvania Supreme Court. Klobuchir, 486 Pa. at 247, 405 A.2d at 883.