Concurring and Dissenting Opinion by
Spaeth, J.:Under the Act of October 17, 1969, P. L. 259, §18, as amended by the Act of July 14, 1971, P. L. 224, No. 45, §1, 17 P.S. §711.18, a defendant is not entitled to a jury trial in the Municipal Court; however, if convicted by the Municipal Court Judge, he may appeal to the Court of Common Pleas Avhere he will receive a trial *64de novo, which, if he chooses, may be a trial by jury. No doubt some defendants will be deterred from appealing and thereby from exercising their right to a jury trial if the Common Pleas judge can, without articulating any special reasons, increase the Municipal Court sentence. I disagree with Judge Hoffman’s view that, because some defendants will be thus deterred, we should hold that the Common Pleas judge may not increase the sentence unless there is “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original [Municipal Court] sentencing proceeding.” North Carolina v. Pearce, 395 U.S. 711, 726 (1969).
The reason for providing a trial de novo in the Court of Common Pleas is to protect the defendant’s right to a trial by jury. This reason, however, may not be invoked by a defendant such as appellant Battle; he cannot maintain that his exercise of his right to a trial by jury was deterred, or “chilled”, by the possibility that the Common Pleas judge might increase his Municipal Court sentence, for after appealing to the Court of Common Pleas he waived his right to trial by jury.
Putting aside the issue of standing, I see no reason to distinguish between, on the one hand, a defendant whose case is so serious that it must start in the Court of Common Pleas, and on the other hand, a defendant whose case, being less serious, starts in the Municipal Court. The Common Pleas defendant and the Municipal Court defendant should be subject to the same possibility of a sentence within the statutory maximum following a trial by jury. State v. Keegan, 296 A. 2d 483 (Me. 1972). To bar a stiffer sentence puts the Municipal Court defendant in a better position than the Common Pleas defendant. As long as the Municipal Court defendant stays out of trouble during the period between his Municipal Court sentencing and Ms trial in Common Pleas, he has absolutely nothing to lose by *65seeking a jury trial in Common Pleas. The worst that can happen to him is reinstatement of the Municipal Court sentence. The only affirmative action the Common Pleas judge can take is to lower the sentence. See Mann v. Commonwealth, 359 Mass. 661, 271 N.E. 2d 331 (1971); State v. Sparrow, 276 N.C. 499, 173 S.E. 2d 897 (1970) (advancing similar arguments in upholding stiffer sentences following de novo trials). There is nothing about the right to trial by jury that requires this result.
I would nevertheless accept putting a Municipal Court defendant in a preferred position if the record demonstrated that the threat of vindictive sentencing were inherent in a two-tier court system, for I agree that there would be an impermissible interference with the right to trial by jury if it appeared that a defendant might be deterred from appealing to the Court of Common Pleas, where he could have a trial by jury, because he feared vindictive sentencing by the Common Pleas judge. North Carolina v. Pearce, supra. However, appellants have not shown any vindictiveness in their own cases. As mentioned, appellant Battle has no standing to argue interference with his right to a trial by jury; appellant Moore did plead guilty only after being told by the Common Pleas judge that he could impose a higher sentence than had the Municipal Court judge, but I find the colloquy preceding the plea factual, not threatening, and the sentence imposed was the same. Nor have appellants shown that an examination of other cases would disclose a pattern of higher sentences being imposed on appeal, from which vindictiveness might be inferred. Absent a showing of vindictiveness, I agree with Judge Cercone that Colten v. Kentucky, 407 U. S. 104 (1972), governs. There are, however, two respects in which I differ with his opinion.
The first is that he does not discuss this court’s decisions in Commonwealth v. Harper, 219 Pa. Superior *66Ct. 100, 280 A. 2d 637 (1971), and Commonwealth v. Mirra, 220 Pa. Superior Ct. 393, 281 A. 2d 773 (1971), which are relied upon by Judge Hoffman. In my judgment, they should be overruled not sub silentio but expressly, as depending upon reasoning inconsistent with Colten v. Kentucky, supra.
The second is that I think there are statutory limitations imposed on Common Pleas judges who preside over cases appealed from the Municipal Court. As mentioned, under the Act of October 17, 1969, as amended, supra, 17 P.S. §711.18, a defendant who appeals from the Municipal Court to the Common Pleas is promised a “trial de novo”. If this statutory provision is to be given effect, the Municipal Court sentence must not be revealed to the Common Pleas judge unless the defendant specifically asks that it be revealed. Only this will assure that the defendant’s case will in fact be tried in Common Pleas “anew the same as if it had not been heard before and as if no decision had been previously rendered.” 2 Am. Jur. 2d Admin. Law §698 (1962). Without knowledge of the Municipal Court sentence, a Common Pleas judge cannot know whether he is imposing a sentence stiffer than that imposed by the Municipal .Court judge. The defendant will receive a fresh determination, not only on the issue of his guilt but also on the question of what punishment is appropriate. While the defendant is entitled to no more than such a determination, he is entitled to no less.
This construction of the statute is but a corollary of the proposition that all defendants should be treated alike, whether their cases start in the Court of Common Pleas or in the Municipal Court. If a defendant’s case starts in Common Pleas, and he is found guilty, the sentencing judge cannot refer to an earlier sentence for the same offense; the same should be so if the defendant is in Common Pleas upon appeal from the Municipal Court.
*67Perhaps it will be thought that I am urging a merely theoretical symmetry, but I think not. No doubt in many cases the Common Pleas judge will remain even handed after referring to the Municipal Court sentence, but, human nature being what it is, in some cases he will not. A principal reason for the creation of the Municipal Court was to lighten the workload of the Court of Common Pleas, enabling the Common Pleas judges to devote more of their time to “major” rather than “minor” cases.* Mindful of this, a Common Pleas judge may regard the time required to retry a case already tried in the Municipal Court as time lost, or at least as time that could have been better spent, and his consequent unhappiness may be reflected in a sentence deliberately staffer than the Municipal Court sentence. In short: While Judge Hoffman would place the defendant whose case starts in Municipal Court in a better position than the defendant whose ease starts in Common Pleas, Judge Cercone would place him in a worse position. I should like them to be in the same position, and I believe that that is what the legislature intended when it promised a “trial de novo”.
1 recognize some difficulty with respect to summary offenses under §2(3) of the Minor Judiciary Court Appeals Act, Act of Dec. 2,1968, P. L. 1137, No. 355, §1 et seq., 42 P.S. §3001, where the statute requires that the notice of appeal state the fines and costs imposed by the Municipal Court, §3(c) (5), 42 P.S. §3003(c) (5), with no indication that this information is to be concealed from the Common Pleas judge. Even as to these cases, however, it would seem that procedures could be devised so that as a practical matter the Municipal Court sentence would not come to the attention of the Common *68Pleas judge. It should he noted in this connection that Municipal Court Rule 6008(b), which according to Rule 6000(b) applies in non-summary cases, does not require that in his notice of appeal a defendant state the sentence imposed below.
Applying the foregoing considerations to the cases at hand, I would affirm in one, and reverse in the other.
At the beginning of the Common Pleas trial, appellant Moore’s attorney volunteered that his client had received a $50.00 fine in the Municipal Court. Since this information was thus properly before the Common Pleas judge, appellant Moore is not entitled to any relief. Appellant Battle’s attorney, however, objected to the increased sentence after it was imposed, and disclosed exactly what the increase was. It cannot be determined from the record whether the Common Pleas judge knew before he imposed sentence what sentence had been imposed in the Municipal Court. It is clear that appellant Battle’s attorney did not volunteer the information beforehand. Appellant Battle is accordingly entitled to be resentenced by a Common Pleas judge who may not look at the sentence imposed by the Municipal Court judge.
The Municipal Court’s jurisdiction extends to “all criminal offenses for which no prison term may be imposed or wliich aro punishable by imprisonment for a term of not more than five years. . . .” Act of Oct. 17, 1969, as amended, supra, 17 P.S. §711.18.