dissenting.
For the reasons set forth in my Opinion in Support of Reversal in Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979) and my concurring and dissenting opinion in Commonwealth v. Newmiller, 487 Pa. 410, 409 A.2d 834 (1979), I dissent.
Pursuant to a plea agreement, appellant pleaded guilty to murder generally and the Commonwealth recommended that appellant be sentenced on a charge of murder of the third degree. This recommendation was accepted and acted upon by the trial judge only after he had conducted a colloquy with appellant and had heard and evaluated the Commonwealth’s evidence.
The majority now allows the Commonwealth to try appellant on charges of murder of the first and second degree after he has successfully appealed the validity of his guilty plea. Such a trial violates fundamental principles of due *382process by permitting the Commonwealth to take revenge against appellant for his success in exercising his right of appeal. See dissenting opinion of Eagen, C. J.
Judicial condonation of such prosecutorial retaliation will inevitably deter similarly situated individuals from seeking to protect their right to a voluntarily entered guilty plea. As the Supreme Court recognized in North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969):
“Where . .. the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, ‘penalizing those who choose to exercise’ constitutional rights, ‘would be patently unconstitutional.’ .. . And the very threat inherent in the existence of such a punitive policy would, with respect to those still in prison, serve to chill the exercise of basic constitutional rights. . .. But, even if the first conviction has been set aside for nonconstitutional error, the imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law.” (Citations omitted).
To allow the Commonwealth to try appellant on charges of murder of the first and second degrees sanctions and, in fact, encourages prosecutorial vindictiveness. This danger far outweighs whatever “justice” might be hypothesized to result in this case-or in any case-from a trial on greater charges than those upon which the appellant was originally convicted and sentenced.
By recommending that the trial court find appellant guilty of murder of the third degree, the Commonwealth acknowledged that justice would be adequately served if a conviction and sentence on that charge were entered against him. More important, the fact-finder’s acceptance of the guilty plea constituted a detached and independent determination that the charge and sentence recommended by the Commonwealth were in fact just. Thus, the fair administration of justice would in no way be served by requiring *383appellant now to stand trial for murder of the first or second degree. Rather, the fairness and impartiality of our system will be seriously undermined if the prosecutor is permitted to forget that he is
“ ‘the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a particular and very definite sense the servant of the law .. . . ’ Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314.”
Gannett Co. v. DePasquale, 443 U.S. 368, 384-385, 99 S.Ct. 2989, 2908, 61 L.Ed.2d 608 n.12 (1979).
The majority’s determination that the Commonwealth may try appellant on a charge of murder of the first or second degree further offends fundamental constitutional principles by placing appellant twice in jeopardy for these offenses. The judge’s entry of sentence constituted an adjudication that appellant was guilty of murder of the third degree, and of no higher degree. Under Pennsylvania law, before a trial court accepts any guilty plea, it must determine that there exists a factual basis to support the degree of guilt charged. Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976); Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974); Commonwealth v. Maddox, 450 Pa. 406, 300 A.2d 503 (1973); Comment to Pa.R.Crim.P. 319(a). See also ABA Project on Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 1.6 (Approved Draft, 1968); accord, ABA Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge § 4.2(b). Moreover, in non-capital murder cases, when, as here, “a defendant enters a plea of guilty to a charge of murder generally, the judge before whom the plea was entered shall alone determine the degree of guilt.” Pa.R. Crim.P. 319(c).
If appellant had gone to trial on a charge of murder generally and been convicted of murder of the third degree, *384it is clear that, following a successful appeal, he could not be retried for murder of the first or second degree. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). There is no valid ground upon which to distinguish appellant’s conviction on the basis of his guilty plea, for the fact-finder’s acceptance of the plea works the same result as a trial verdict. The risk to appellant continued until the judge “alone determine[d] the degree of guilt,” accepted his plea and the Commonwealth’s recommendation, and sentenced him. Jeopardy thus clearly attached to all degrees of criminal homicide considered at appellant’s guilty plea hearing. Only with the adjudication of guilt and the entry of sentence did appellant’s jeopardy for the greater offense of murder of the first and second degrees come to an end.
Citing the Opinion in Support of Affirmance in Commonwealth v. Klobuchir, supra, the majority concludes that appellant’s right to withdraw a guilty plea prior to sentencing prevents jeopardy from attaching to the higher degrees of murder. This view, however, ignores the practical consequences of such a withdrawal following the fact-finder’s rejection of the plea. A judge may, of course, refuse to concur in a plea agreement if he determines that the defendant’s degree of guilt exceeds the prosecutor’s recommended charge. In such cases, “he shall permit the defendant to withdraw his plea.” Pa.R.Crim.P. -319(b)(3). This right of withdrawal, of which the majority makes so much, is in reality hollow indeed, for once his plea has been rejected, a defendant has no choice but to withdraw it. His only choice is between pleading guilty to, or standing trial on, a higher charge. Thus, contrary to the assertion of the majority, appellant’s risk of trial and conviction for murder of the first or second degree was in no way mitigated by his right to withdraw his guilty plea.
The result reached by the majority violates fundamental principles of due process and the prohibition against double jeopardy. Thus, a Pennsylvania litigant is once again compelled to turn to the federal courts for vindication of his constitutional rights. See Ferri v. Ackerman, 444 U.S. 193, *385100 S.Ct. 402, 62 L.Ed.2d 355 (1979), reversing 483 Pa. 90, 394 A.2d 553 (1978); United States ex rel. Sullivan v. Cuyler, 631 F.2d 14 (1980).