Appeal from the Order of September 18, 1975 of the Court of Common Pleas of Westmoreland County, Criminal Division at No. 689 April Term, 1975.
Patrick H. Mahady, Assistant District Attorney, and Albert M. Nichols, District Attorney, Greensburg, for appellant.
Irving M. Green, New Kensington, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result.
[ 247 Pa. Super. Page 452]
In 1973, Beverly Roberts filed a complaint charging appellee with fornication and bastardy.*fn1 After a preliminary hearing these charges were dismissed for failure to prove a prima facie case. On January 24, 1975, complainant charged appellee with neglect to support an illegitimate child.*fn2 Appellee waived a preliminary hearing and was indicted on April 23, 1975.
Prior to trial, upon oral motion, appellee entered a plea of autrefois acquit,*fn3 averring that, in the 1973 proceeding, appellee had been charged with, and acquitted of, essentially the same offense. After a hearing, the court sustained the motion, stating that, "this case is dismissed; we'll find him not guilty on this charge." (emphasis added).
The first question raised is whether the Commonwealth is permitted to appeal the lower court's action in this case. As a general rule, the prosecution may only appeal pure questions of law. Commonwealth v. Simpson, 310 Pa. 380, 165 A. 498 (1933); Commonwealth v. Wallace, 114 Pa. 405, 6 A. 685 (1886). Moreover, the order appealed from must be a final judgment which works a discharge of the defendant.*fn4 The sustaining of a plea of double jeopardy, on several occasions, has been held to comply with these requirements. Commonwealth v. Baker, 413 Pa. 105, 196 A.2d
[ 247 Pa. Super. Page 453382]
(1964); Commonwealth v. Simpson, supra. It is clear that "but for" the judge's statement that the defendant was "not guilty," the lower court's disposition would have presented an appealable order.
In Commonwealth v. Lodge No. 148, Loyal Order of Moose, 188 Pa. Super. 531, 149 A.2d 565 (1959), an alderman found the Lodge guilty of conducting a public eating or drinking place without a license. On appeal to the court of quarter sessions, on stipulated facts, the defendant was adjudged not guilty. A motion to quash the Commonwealth's appeal was granted, based on the well settled rule that "where the defendant has been found not guilty, either by verdict of the jury or decision of the trial judge, the Commonwealth has no right of appeal." (citations omitted) Id. 188 Pa. Super. at 538, 149 A.2d at 569. The same result was obtained when the lower court sustained a demurrer to the Commonwealth's evidence, but instead of dismissing the charges, directed a verdict of not guilty. Commonwealth v. Ferrone, 218 Pa. Super. 330, 280 A.2d 415 (1971); Commonwealth v. Kerr, 150 Pa. Super. 598, 29 A.2d 340 (1942); see also Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972) (after declaring ordinance unconstitutional the lower court entered a verdict of not guilty -- held: not appealable). After a verdict of not guilty, whether the result of error by the trial judge or a perverse finding by the jury, the Commonwealth is precluded from appealing the judgment. Commonwealth v. Miller, 150 Pa. Super. 604, 29 A.2d 343 (1942); Commonwealth v. Kerr, 150 Pa. Super. 598, 29 A.2d 340 (1942); Commonwealth v. Heiland, 110 Pa. Super. 188, 167 A. 439 (1933).
Appellee cites this line of cases, culminating in Commonwealth v. Ray, supra, in support of the contention that the Commonwealth may not appeal this case since the lower court entered a verdict of not guilty. In each of the above cases, the Commonwealth had presented its evidence. Appeals were proscribed because the overturning of such a verdict, whether or ...