Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1968, No. 55, in case of Commonwealth of Pennsylvania v. Roger DeVaughn.
Stanton D. Levenson, with him Watzman, Levenson & Snyder, for appellant.
Robert L. Eberhardt, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Watkins, J., dissents.
[ 221 Pa. Super. Page 411]
This is an appeal from appellant's conviction for armed robbery. Appellant contends that he was previously acquitted of this offense, and that he therefore was twice placed in jeopardy for the same offense.
Appellant was initially indicted at Nos. 96 and 97 November Sessions, 1968, upon charges of murder, voluntary manslaughter, and involuntary manslaughter. Appellant was then indicted at No. 55 December Sessions, 1968, upon the charge of armed robbery. The above charges were lodged against appellant and two co-defendants as the result of the shooting death of a grocery store owner in the course of an armed robbery. The trials of the defendants were severed.
[ 221 Pa. Super. Page 412]
In April 1969, appellant went to trial on the felonious homicide charges before the Honorable Samuel Strauss and a jury. Judge Strauss properly instructed the jury regarding the law of felony murder. The jury thereafter returned a verdict of acquittal. Following appellant's acquittal, appellant made an application to quash the indictment for armed robbery on the basis that a second prosecution was barred by the Fifth Amendment to the United States Constitution. This application was denied.
Just prior to appellant's trial on the charge of armed robbery, appellant's attorney filed a Special Plea in Bar which again raised appellant's double jeopardy claim. This Special Plea in Bar was denied, and appellant proceeded to trial before the Honorable Ralph H. Smith, Jr., and a jury. The jury found appellant guilty of the armed robbery.
Post-trial motions were filed and argued on December 1, 1970, before a court en banc, consisting of Judges Smith, Strauss, and Judge Richard E. McCormick. On October 4, 1971, Judge Smith filed an opinion denying the motions. Judge McCormick concurred in this opinion. Judge Strauss thereafter filed a dissenting opinion in which he expressed his view that appellant's motion in arrest of judgment should have been granted on the basis of appellant's claim of double jeopardy. On January 5, 1972, appellant was sentenced to undergo imprisonment for a term not less than ten nor more than twenty years. This appeal followed.
The federal constitutional guarantee against double jeopardy has been made applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969). The question for determination here is whether the Commonwealth violated that guarantee by prosecuting appellant for armed robbery after ...