concurring:
While I agree with the result reached by the majority,1 I feel that an additional observation is in order.
I detect an implication in the majority opinion that an increase in the overall sentence on the indictment is barred by the double jeopardy clause. I cannot agree. In Pearce v. North Carolina, 395 U.S. 711, 719-20, 721, 89 S.Ct. 2072, 2077, 23 L.Ed.2d 656 (1969), the Supreme Court decided:
“Long-established constitutional doctrine makes clear that, beyond the requirement [that time already served must be credited in imposing sentence upon conviction on retrial], the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction. At least since 1896, when United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300, was decided, it has been settled that this constitutional guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside. . . . And at least since 1919, when *413Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, was decided, it has been settled that a corollary of the power to retry a defendant is the power, upon the defendant’s reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction. [Footnotes omitted.]
[If retrial] does result in a conviction, we cannot say that the constitutional guarantee against double jeopardy of its own weight restricts the imposition of an otherwise lawful single punishment for the offense in question. To hold to the contrary would be to cast doubt upon the whole validity of the basic principle enunciated in United States v. Ball, supra, and upon the unbroken line of decisions that have followed that principle for almost 75 years. We think those decisions are entirely sound, and we decline to depart from the concept they reflect.” [Footnote omitted.]
I believe that the concept referred to is equally applicable to the instant case; since the sentence has been vacated at appellant’s behest, he may not be heard to object on double jeopardy grounds to an increased sentence on remand.2
However, the Pearce court also held that the due process clause did bar resentencing to a longer term than that originally imposed, in the absence of “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Id. 395 U.S. at 726, 89 S.Ct. at 2081. The rationale for this conclusion was that the possibility of increased punishment upon conviction on retrial tended to deter defendants from exercising their appellate rights. As Judge Spaeth points out, imposition of sentence on the second and fourth counts would not represent a net increase in sentence. As *414only a net increase could conceivably have a chilling effect on the exercise of the right to appeal, in the instant case Pearce does not prohibit the imposition of sentence on the counts which we affirm.
The narrow “intervening conduct” exception to the Pearce prohibition is not, however, available to the trial court on remand; the Act of June 24, 1895, P.L. 212, § 8, par. 8, as amended June 3, 1971, P.L. 122, No. 6, § 1 509(a)(33), 17 P.S. § 192, as the majority correctly notes, bars the Superior Court from increasing any sentence on any indictment. This statutory prohibition has been held applicable to a trial court resentencing on remand. Commonwealth v. Downer, 161 Pa.Super. 339, 53 A.2d 897 (1947). Thus, I must agree with the majority that the total sentence may not be increased.
PRICE, J., joins in this concurring opinion.. See Tinder v. United States, 345 U.S. 565, 73 S.Ct. 911, 97 L.Ed. 1250 (1953).
. A fortiori, he cannot complain about a sentence that does not exceed that previously imposed. Having successfully sought correction of the trial court’s error, he may not retain the benefit of that error, the benefit being the court’s failure to sentence on counts two and four.