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decided: March 14, 1967.


Appeals from orders of Court of Oyer and Terminer of Allegheny County, Dec. T., 1963, Nos. 103 and 104, in case of Commonwealth of Pennsylvania v. Barbara Warfield.


Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth.

H. David Rothman, with him Robert N. Peirce, Jr., for defendant.

Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen and Mr. Justice Eagen concur in the result. Concurring and Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno joins in this concurring and dissenting opinion.

Author: O'brien

[ 424 Pa. Page 556]

Barbara Warfield was indicted in Allegheny County for murder and voluntary manslaughter. Defendant's counsel filed a pretrial motion to suppress her written statement given to police following her arrest, wherein she had admitted robbing and killing the victim. A hearing was held on September 11, 1964, before the Honorable Ralph H. Smith, who denied defendant's motion to suppress her written confession.

Defendant was then arraigned, entered a plea of not guilty, and on November 16, 1964, came on for trial before the Honorable Edwin M. Clark, and a jury.

[ 424 Pa. Page 557]

After the jury had been empaneled and sworn, the trial judge entertained a second application to suppress Barbara Warfield's confession. The jury was excused and a hearing held concerning the circumstances under which the confession had been obtained. Following this hearing, at which no objection to the procedure followed was voiced by either side, the trial court found that the written and oral statements made by Barbara Warfield for the police were secured in violation of her constitutional rights and entered an order that the evidence thus obtained would not be admitted as evidence in the case.

Following the ruling to suppress the confession by the trial judge, the trial began, and the district attorney, in his opening statement to the jury, stated that defendant had made a confession to the police, admitting her guilt. It is undisputed by all concerned that this statement by the district attorney was made for the specific purpose of causing a mistrial so that a ruling might be obtained from the Supreme Court of Pennsylvania upon the correctness of the trial judge's suppression of the confession. The defendant, immediately after the district attorney's remarks concerning the confession, moved for a mistrial which the court granted. The Commonwealth appealed to this Court at No. 77 March Term, 1965, and, on June 30, 1965, we, speaking through Mr. Justice Eagen, quashed the appeal. Com. v. Warfield, 418 Pa. 301, 211 A.2d 452 (1965).

The record was remanded for trial and the instant motion was then filed raising the questions of former jeopardy and estoppel. A hearing was held before a court en banc to determine what transpired among the trial court, counsel, and defendant, before the mistrial took place. The hearing consisted solely of the statements of counsel for both sides, with no material disputes as to what had previously transpired.

[ 424 Pa. Page 558]

At the hearing below, the Commonwealth contended, as it does here, that Barbara Warfield should stand trial for murder, without limitation as to the degree of murder of which she might be convicted. Barbara Warfield, now represented by counsel other than represented her at the abortive trial, contended, and still contends, that she should not be required to stand trial for murder at all, on the theory that jeopardy had attached at the first trial. The court below quashed the indictment for murder in the first degree but refused to quash the indictment in so far as it charged murder in the second degree and voluntary manslaughter and directed the defendant to stand trial accordingly. Both the Commonwealth and the defendant have appealed, the Commonwealth from the order of the lower court sustaining defendant's plea of double jeopardy as to murder in the first degree, and the defendant from the failure to quash the indictment in toto.

Article I, § 10, of the Pennsylvania Constitution, reads as follows: "No person shall, for the same offense, be twice put in jeopardy of life or limb." In Com. v. Simpson, 310 Pa. 380, 386, 87, 88, 165 A. 498 (1933), when faced with substantially the same question, we stated that: "Moreover, the language of the constitutional provision is clear and unambiguous. 'No person shall for the same offense be twice put in jeopardy of life or limb,' can only mean that no one shall be tried a second time for an offense the punishment of which may result in the taking of his life or injury to his limbs. Plainly, the language itself compels this conclusion; abnormality in its use is required before any other can be reached. . . .

"Some of our cases give color to the thought that the court, in much earlier decades, had reached the conclusion only that he could not again be tried for first degree murder, and that there was no reason for

[ 424 Pa. Page 559]

    the rule that the prisoner should be completely discharged when he had once been put upon trial under an indictment for murder and upon a second arraignment pleaded former jeopardy. Thus in McCreary v. Com., supra, the defendants were being tried for burglary. When it appeared the jury was unable to agree on a verdict, it was discharged; subsequently the accused were again put on trial. Their defense was former jeopardy. The plea was overruled and they were convicted. We affirmed the sentence, in the opinion making it clear that the constitutional provision applied only to capital offenses, saying: 'It is not denied that the clause applies to cases of felony of death; but no case has been cited showing its application to crime of an inferior grade. . . . It [the constitutional provision] is not so inexorable as to shut out a practical construction demanded by necessity, and the safety of the community. . . . That it applies to capital cases is on all hands conceded, for both "life and limb" are there in jeopardy. But this cannot be said when imprisonment alone is the punishment. There life is surely not jeopardized. . . .'

"It is true the Supreme Court of the United States has declared that by the use of the phrase 'life or limb' in the Constitution of the United States, protection against double jeopardy is extended to all criminal offenses. It was so held in Ex Parte Lange, 18 Wallace 163. We have not followed this extreme view, but have permitted the retrial of offenses after juries have been discharged, although such an outcome could not be brought about under the federal interpretation. This ruling is not binding upon us, because the provision in the United States Constitution is a limitation upon the powers of the federal government and is not a limitation upon the states: Brantley v. Georgia, 217 U.S. 284. The view which we are now taking, it may be admitted, was not that entertained by the court in Com. v. Fitzpatrick

[ 424 Pa. Page 560]

    which followed Hilands v. Com. We think, however, our present construction comports more with sound public policy and with the necessity, now existing in dealing with law-breakers, for a reasonable interpretation of the criminal law. Hilands v. Com., 111 Pa. 1, and Com. v. Fitzpatrick, 121 Pa. 109, are overruled, so far as they are in conflict with this opinion." See also Com. ex rel. Papy v. Maroney, 417 Pa. 368, 207 A.2d 814 (1965); Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 295 (1964).

Further, in Com. v. Simpson, supra, at page 384, we stated: "Where a defendant has been put upon trial on an indictment charging murder, the jury sworn, and before verdict, without the defendant's acquiescence, or any absolute necessity so to do, the jury has been discharged, may the defendant, pleading former jeopardy, be tried again on the same indictment? That he may not be for first degree murder is conceded and beyond question, as he would then again be in jeopardy of life."

Accordingly, we must agree with the court en banc that Barbara Warfield, defendant, could not be tried for any crime higher than murder in the second degree and reject defendant's contention that she could not be tried for either murder in the second degree or voluntary manslaughter. A careful review of the record, the hearing before the court en banc and its opinion, leads us to conclude that jeopardy did attach because the mistrial was deliberately caused by the Commonwealth and was not (even though the idea might have been suggested by defendant's attorney) caused by the voluntary act of the defendant. As Mr. Justice Eagen for this court stated, in Com. v. Warfield, supra: "Certainly, no one could reasonably assert that after an adverse ruling, (even if the Commonwealth is the affected party), that a mistrial could be deliberately

[ 424 Pa. Page 561]

    caused, and an appeal properly filed from the order holding the ...

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