Appeal from order of Superior Court, April T., 1970, No. 136, affirming order of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1960, No. 4, in case of Commonwealth of Pennsylvania v. Vivian L. Richbourg.
R. Stanton Wettick, Jr., and George Patterson, Jr., for appellant.
Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen took no part in the decision of this case.
This is an appeal from an order dismissing, after hearing, a petition filed under the Post Conviction
Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1970). The Superior Court affirmed, per curiam, with a dissenting opinion by Judge Hoffman. Com. v. Richbourg, 217 Pa. Superior Ct. 96, 266 A.2d 534 (1970). We granted allocatur.
In 1961 petitioner was indicted for rape and brought to trial before a judge and jury. The lower court, after hearing closing arguments, postponed its charge until the next morning. During that evening, the Assistant District Attorney prosecuting the case received a telephone call from the husband of the complainant accusing the Assistant District Attorney of not having properly tried the case and of compromising the Commonwealth's position in his closing argument to the jury. The next morning the Assistant District Attorney informed the lower court of the telephone conversation and stated that "there exists the possibility that I may have over-simplified this thing" and ". . . perhaps the prosecution erred against the complainant, or the victim, in usurping the function of the jury in expressing a doubt, an honest doubt, which we had as a result of the evidence in this case." The lower court then granted, over defense counsel's objection, the Commonwealth's request for the withdrawal of a juror.
Notwithstanding his pretrial plea of former jeopardy, petitioner was later retried, convicted of rape and sentenced to a term of imprisonment of not less than seven and one-half years nor more than fifteen years. His post-trial motion was also dismissed by the lower court.*fn1
In this appeal we are first asked to consider whether the federal prohibition against double jeopardy, made applicable to the states by Benton v. Maryland, 395 U.S. 784 (1969), requires retrospective application. Secondly, if Benton must be applied retroactively, we must then question whether petitioner's retrial was constitutionally permissible.
Prior to Benton, it was the position of the United States Supreme Court, enunciated in the landmark case of Palko v. Connecticut, 302 U.S. 319 (1937), that the double jeopardy prohibition contained in the Fifth Amendment did not limit the power of a state to reprosecute a criminal defendant. See, also, Brock v. North Carolina, 344 U.S. 424 (1953).*fn2 Accordingly, a person accused and retried by this Commonwealth for the same crime could only look to the double jeopardy clause of Article I, § 10 of the Constitution of this Commonwealth for relief.*fn3 Whereas the Fifth Amendment provision was early construed to preclude retrial in both capital and non-capital cases, Ex Parte Lange, 85 U.S. (18 Wall.) 163 (1874), this Court had consistently interpreted Article I, § 10 as applicable to only capital cases. Com. v. Simpson, 310 Pa. 380, 165 Atl. 498 (1933). See, also, Com. v. Baker, 413 Pa. ...