Appeal, No. 421, Jan. T., 1961, from judgment and sentence of Court of Oyer and Terminer and General Jail Delivery and Quarter Sessions of the Peace of Philadelphia County, Dec. T., 1958, No. 921, in case of Commonwealth of Pennsylvania v. Carl Melton, also known as Carl Milton. Judgment and sentence affirmed.
James Francis McCort, for appellant.
William H. Wolf, Jr., Assistant District Attorney, with him Arlen Specter and Robert W. Williams, Jr., Assistant District Attorneys, Paul M. Chalfin, First Assistant District Attorney, and James C. Curmlish, Jr., District Attorney, for Commonwealth, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
Defendant pleaded guilty and then changed his plea to "not guilty" to the murder of Rose Schloss. A jury found defendant guilty of murder in the first degree with the penalty fixed at death. The Court en banc granted defendant's motion for a new trial on the ground that an aggregate of prejudicial events, including an emotional outburst by Rose Schloss's bereaved husband, "created such an inflammatory atmosphere that the jury's determination may well have been based upon other than the substantive, factual evidence introduced." The Commonwealth appealed from and asked this Court to reverse the Order which granted defendant a new trial, and to remand the record and direct the judgment of sentence be entered on the jury's verdict. The Commonwealth contended that the grant of a new trial was an abuse of discretion. The appeal of the Commonwealth was dismissed by this Court because the Commonwealth has a right of appeal from an adverse ruling in a criminal case "only where the question involved is purely one of law. ... Where, however, the reason for the action of the trial court, whereof the Commonwealth complains, is [as here] based upon an admixture of law and fact, the Commonwealth is without any right of appeal therefrom: Commonwealth v. Hartman, 383 Pa. 461-462, 463, 119 A.2d 211; Commonwealth v. Dolan, 155 Pa. Superior Ct. 453, 455, 38 A.2d 497:" Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328.
Defendant contends, as we shall see, that this appeal by the Commonwealth constituted double jeopardy and violated his constitutional rights and entitled him to a discharge.
At the second trial, defendant pleaded guilty to murder and the trial Court, consisting of President Judge HAGAN, Judge WEINROTT and the trial Judge, Judge MCCLANAGHAN, after hearing testimony, fixed the degree of guilt as murder in the first degree and, after hearing voluminous testimony concerning defendant's early life and what kind of a man he was and had been, fixed the penalty at death. From this judgment and sentence defendant took this appeal.
Defendant contends he should be discharged because (1) he had been placed in double jeopardy in violation of his Constitutional rights; and (2) the evidence was insufficient to sustain his conviction of murder in the first degree; and (3) the lower Court abused its discretion when it fixed the penalty at death.
The essential and basic requirements to sustain a plea of double jeopardy is that the defendant is being tried a second time for a criminal offense of which he had been previously acquitted: Commonwealth ex rel. Patrick v. Banmiller, 398 Pa. 163, 157 A.2d 214; Commonwealth ex rel. Farrow v. Martin, 387 Pa. 449, 127 A.2d 660, and cases cited therein.
In Commonwealth ex rel. Patrick v. Banmiller, 398 Pa., supra, the Court said (pages 164-165): "A defendant who has been convicted and who has secured a reversal of the judgment of conviction, either on appeal or by the granting of a writ of habeas corpus requiring a new trial, cannot secure his full release. The relator, by applying for the reversal, has waived his protection against being prosecuted again which the provision against double jeopardy (Pa. Const., Art. I, § 10) affords him. Relator was not put in jeopardy a second time, since it was only the second trial that resulted
in a valid sentence. [Commonwealth v. Lutz, 200 Pa. 226, 49 Atl. 771] Commonwealth ex rel. Farrow v. Martin, 387 Pa. 449, 127 A.2d 660 (1956); Commonwealth ex rel. Walker v. Banmiller, 186 Pa. Superior Ct. 338, 142 A.2d 758 (1958); P.L.E., Criminal Law § 116." Cf. also Gori v. United States, 367 U.S. 364.
In Commonwealth ex rel. Farrow v. Martin, 387 Pa., supra, the Court said (pages 450-451): "The provision against double jeopardy exists in the common law and is a part of the Fifth Amendment of the Federal Constitution, and has been incorporated in Article I, Section 10 of the Pennsylvania Constitution. Our constitutional provision is that '... No person shall, for the same offense, be twice put in jeopardy of life or limb. ...' As has been pointed out in prior cases, it does not prohibit more than one trial for the same offense, but only that he shall not be twice in jeopardy. The right of an accused to interpose such plea in proper cases has never been questioned. However, the mere fact that he has once been tried, in itself, is not sufficient to base a plea.
"One is placed in double jeopardy if he has received an acquittal or its equivalent, or a sentence which is no longer subject to attack. Until such legal sentence is imposed, the jeopardy in which he was placed, when first tried, must be deemed to continue until the time of imposition of legal sentence at the subsequent trial. 'Until a convicted prisoner receives a sentence which can withstand attack, it may be conceived that his original jeopardy continues without interruption, and that he is therefore not put in jeopardy a second time when he receives his first valid sentence': King v. United States, 98 F.2d 291, 295. See also United States v. Ball, 163 U.S. 662, 41 L.Ed. 300, 303; Trono v. United States, 199 U.S. 521, 50 L.Ed. 292; Stroud v. United States, 251 U.S. 15, 64 L.Ed. 103.
"Petitioner may not by his own voluntary action seek and obtain a reversal of judgment, and thereupon take advantage of such reversal to secure full release from punishment properly imposed as a sentence, upon legal conviction at the trial he so obtained. As has been held, relator has waived any benefit of the provision against double jeopardy in order that he might obtain the greater benefit of a review and reversal of his conviction and sentence by the court. See People ex rel. Hunt v. Warden of New York City Prison, 107 N.Y.S.2d 136; 22 C.J.S., Criminal Law, § 273. To hold otherwise would result in a travesty upon justice."*fn1
Defendant concedes, because of a myriad cases so holding, that a second trial for murder which results from his own motion for a new trial or his petition for habeas corpus after he has been convicted of murder in the first degree, does not amount to double jeopardy. Cases, supra. However, he contends that an appeal by the Commonwealth from the lower Court's grant of a new trial sur defendant's motion therefor, completely changed his legal status and even though his motion for a new trial was sustained and the appeal of the Commonwealth was dismissed, he was placed in double jeopardy. It is apparent from the principles enunciated in the foregoing authorities that there is neither reason, logic, nor authority to support this ingenious contention and it is utterly devoid of merit.
Even more astonishing is defendant's second contention that the evidence was insufficient to convict him of first degree murder with penalty of death because the actual killing which occurred during a robbery was done by his accomplice. Defendant was the ringleader in one of the most unnecessary killings and one of the most ...