concurring:
I agree with Judge Johnson’s reasoning that the holding in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) is applicable to the two-tier system in Philadelphia, notwithstanding the absence of an accused’s right to relitigate in a trial de novo in the Court of Common Pleas the denial of his motion to suppress by a Municipal Court. See Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895 (1976). Additionally, and more importantly, I agree that “there is no defect in the Common Pleas judge having imposed a greater sentence than that which was imposed by the Municipal Court judge, if the statutory and case law sentencing procedures are complied with.” (Emphasis added) (Footnote omitted) Commonwealth v. DeCaro, 298 Pa. Super. 32, 42, 444 A.2d 160, 165 (1982).
However, I write separately to point out that the latter statement overrules our holding in Commonwealth v. Moore, 226 Pa.Super. 58, 312 A.2d 422 (1973). In Moore, the question posed was:
“whether or not the Common Pleas Court in a trial de novo following an appeal as of right from a Municipal Court summary conviction can impose a sentence greater than that originally imposed in the Municipal Court without placing upon the record facts justifying such increase in sentence.” (Emphasis added) Id., 226 Pa.Super. at 60, 312 A.2d at 422.
To start with, the Court in Moore found the Kentucky system, as discussed in Colten, to be indistinguishable from the Philadelphia system. Consistent therewith, the Court *49went on to hold that, unless the appellant appealing a summary judgment to a higher court alleges error in regard to the prior summary offense and in the sentence imposed by the municipal court, the reasoning supporting Colten rather than that supporting North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) was applicable and governing. In other words, the Moore Court was stating that the trial judge’s reasoning for increasing a sentence after retrial was not required to “ ‘be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding^]’ ” Commonwealth v. Moore, supra, 226 Pa.Super. at 60, 312 A.2d at 423, unless, as just stated, the appellant alleged error attendant to the summary proceedings and the sentence imposed by the municipal court.1 In *50light of our Supreme Court’s ruling in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and the promulgation of the Sentencing Code (42 Pa.C.S.A. § 9701 et seq. (Pamphlet, 1981)), such statement can no longer be considered to be a viable tenet in the law.
Furthermore, I find that Riggins and the Sentencing Code are sufficient safeguards to assure that any sentence imposed, regardless of whether it be entered after a trial de novo from a summary offense or following a retrial, comports with the dictates of due process and is not constitutionally infirm.
. Such conclusion is predicated upon the unequivocal statement in Moore that:
“It is our holding that where, as in the instant case, defendant takes an appeal as of right from a summary judgment, without allegations of error, to a higher court before which his case is tried de novo without reference to the prior summary proceeding and without reference to the sentence imposed by the municipal court, the reasoning supporting Colten v. Kentucky rather than that supporting North Carolina v. Pearce is applicable and governing.” (Emphasis added in part) Commonwealth v. Moore, supra, 226 Pa.Super. at 63, 312 A.2d 424.
Additionally, it is interesting to observe that the prosecution in Moore contended “that the North Carolina v. Pearce decision ha[d] no applicability where the second sentencing [was] by a different court after trial de novo as of right without allegation of error.” (Emphasis added) Id., 226 Pa.Super. at 61, 312 A.2d at 423.
Parenthetically, based on the preceding, if an accused were to “allege error” in his appeal de novo from a summary conviction and the sentence entered by the Municipal Court, then, according to Moore, upon subsequent conviction and the imposition of an increased sentence in the Court of Common Pleas, the rationale supporting Pearce would apply. That is:
“ ‘reasons [for the increased sentence] must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.’ ” Id., 226 Pa.Super. at 60, 312 A.2d at 423.
I cannot subscribe to such a view, inasmuch as our Supreme Court’s pronouncement in Commonwealth v. Riggins, infra, and the Legislature’s enactment of the Sentencing Code precludes the issuance of an arbitrary and capricious sentence.