concurring and dissenting:
I agree with the Majority’s treatment of the substantive issues presented by the instant appeal. I dissent because the Majority’s disposition is erroneous. I would remand for resentencing consistent with our opinion in Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972).
The problem which we face is not uncommon: once we vacate the judgment of sentence on one charge, but affirm as to other charges, what disposition is proper? That question was answered in Commonwealth v. Lockhart, supra, 223 Pa.Super. at 65, 296 A.2d at 886:
“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 one.’ McGee v. United States, 462 F.2d 243, 246 (2d Cir. 1972).” This Court has followed that principle on numerous occasions. Commonwealth v. Leonhard, 245 Pa.Super. 116, 369 A.2d 320 (filed November 22,1976); Commonwealth v. Davison, 243 Pa.Super. 12, 364 A.2d 425 (1976); Commonwealth v. Spraggins, 235 Pa.Super. 730, 344 A.2d 911 (1975) (per curiam remand); Commonwealth v. Goodyear, 235 Pa.Super. 544, 344 A.2d 672 (1975); Commonwealth v. Green, 233 Pa.Super. 731, 339 A.2d 788 (1975) (per curiam remand); *464Commonwealth v. Hannan, 229 Pa.Super. 540, 331 A.2d 503 (1974); Commonwealth v. Carter, 230 Pa.Super. 236, 326 A.2d 480 (1974); Commonwealth v. Moore, 225 Pa.Super. 735, 307 A.2d 332 (1975) (per curiam remand). See also, Commonwealth v. Simms, 228 Pa.Super. 85, 324 A.2d 365 (1974) (dissenting opinion by HOFFMAN, J.); Commonwealth v. Mease, 226 Pa.Super. 255, 313 A.2d 272 (1973) (dissenting opinion by HOFFMAN, J.).1
The Majority’s reliance on Commonwealth v. Richardson, 232 Pa.Super. 123, 334 A.2d 700 (1975) is inapposite. It is true that in Richardson, we vacated a suspended sentence for a lesser offense and affirmed the judgment of sentence on the greater offense, without remanding for resentencing. Nowhere did we indicate an intention of overruling Lock-hart. Further, in several instances since Richardson, we have followed the remedy prescribed in Lockhart. See, e.g., Commonwealth v. Leonhard, supra; Commonwealth v. Davison, supra; Commonwealth v. Spraggins, supra. Thus framed, we may have been mistaken in Richardson when we failed to remand for resentencing. That does not permit us to ignore existing case law in the case before us, especially when the appellant has specifically raised that issue in his brief.
SPAETH, J., joins in this opinion.. My research indicates that in Commonwealth v. Grant, 235 Pa.Super. 357, 341 A.2d 511 (1975), we declined to apply the remedy prescribed in Lockhart, but only after considering the sentencing colloquy and concluding that “. . . it is clear from the colloquy at the sentencing hearing that if we were to remand, not only would the same sentence be imposed, but the sentence would be an appropriate one.” 235 Pa.Super. at 366, 341 A.2d at 516. Except for the narrow exception announced in Grant, I find that our adherence to the Lockhart principle has been almost universal.