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COMMONWEALTH v. SMITH ET AL. (09/18/70)

decided: September 18, 1970.

COMMONWEALTH
v.
SMITH ET AL., APPELLANTS



Appeal from judgment of sentence of Court of Common Pleas of Berks County, Sept. T., 1968, No. 255, in case of Commonwealth v. John Doe, John A. Kline, Gerald Freese, Roger Smith, Charles Ginder, John E. Hall, LeRoy Stoltzfus, Charles Dorman, and Robert A. Marcinkowski.

COUNSEL

Michael A. O'Pake and Emmanuel H. Dimitriou, with them Martin W. Binder, Laurence F. Ward, and Marx, Ruth, Binder & Stallone, and Lieberman & Dimitriou, for appellants.

Grant E. Wesner, Assistant District Attorney, with him Robert L. Van Hoove, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.

Author: Per Curiam

[ 217 Pa. Super. Page 149]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Appellants were convicted of disturbing the peace and disorderly conduct by a justice of the peace of Oley Township, Berks County. Both convictions were based upon violations of Oley Township Ordinances. Appellants were subsequently convicted of riot and related offenses by the Court of Common Pleas of Berks County, convictions based upon the same acts as were involved in the violations of the two township ordinances. No claim of double jeopardy, however, was entered at the trial for riot. Subsequently, the Supreme Court decided Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184 (1970). On appeal from judgment of sentence, appellants claim that their riot convictions were violative of the guarantee against double jeopardy.

In Commonwealth v. Yahnert, 216 Pa. Superior Ct. 159, 264 A.2d 180 (1970), we held that we would consider on review a plea of res judicata or autrefois acquit even though not raised below. We said that "we believe it is incumbent upon us to consider a question that raises 'basic and fundamental' error. See Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968) (Bell, C. J.). 'A man is not to be deprived of his liberty and reputation because of the inadvertence of a trial judge or the carelessness of his counsel in failing to call the attention of the trial court to palpable error which offends against the fundamentals of a fair and impartial trial.' Commonwealth v. O'Brien, 312 Pa. 543, 546, 168 A. 244 [, 245] (1933). . . . We

[ 217 Pa. Super. Page 150]

    see no purpose in postponing inevitable relief until appellant files a P.C.H.A. petition alleging ineffective assistance of counsel, Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 3(c)(6), 19 P.S. § 1180-3(c)(6) [(Supp. 1970)]; see Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), or until appellant files a petition for writ of habeas corpus in federal court, compare Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822 (1963), with Ex parte Lange, 85 U.S. (18 Wall.) 163 [(1874)]; In re Snow, 120 U.S. 274, 7 S. Ct. 556 (1887); In re Nielson, 131 U.S. 176, 9 S. Ct. 672 (1889)." Id. at 160-161 n.1, 264 A.2d at 181 n.1. I cannot believe that this Court can make any rational distinction between a plea of res judicata or autrefois acquit which was not made below and a claim of double jeopardy which likewise was not made below. Neither can be waived by counsel's action alone. Waiver, if at any time such waiver is intelligent, must be made with the participation of the accused. Cf. Commonwealth v. Garrett, 425 Pa. ...


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