No. 383 January Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, as of October Sessions, 1974, No. 985.
Rudolph S. Pallastrone, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Eric Henson, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
On March 6, 1975, a court sitting without jury convicted appellant of murder of the third degree but, upon post-verdict motions, granted a new trial because the Commonwealth withheld from appellant potentially exculpatory evidence. On November 18, 1975, a jury on retrial convicted appellant of murder of the third degree. The court denied post-verdict motions and sentenced appellant to imprisonment of ten to twenty years. Appellant argues that the trial court abused its discretion by reconsidering admissibility of certain testimony ruled inadmissible at the first trial when no new facts on the issue had been presented at trial.*fn1 We affirm.*fn2
At the first trial, the court excluded testimony of statements the victim gave to a witness shortly after the stabbing. Upon retrial, another trial judge permitted the Commonwealth to introduce the testimony under the res gestae exception to the hearsay rule.
The issue appellant raises is, for criminal proceedings, one of first impression in this Court. In Commonwealth ex rel. Wallace v. Burke, 158 Pa. Super. 612, 45 A.2d 871 (1951), the court stated:
"When a court grants a new trial, the necessary effect thereof is to set aside the prior judgment and leave the case as though no trial had been held. . . . By the operation of an order granting a new trial, the cause, in contemplation of law, is precisely in the same condition as if no previous trial had been held."
Id. 158 Pa. Super. at 613, 45 A.2d at 871; accord, Commonwealth v. Fox, 181 Pa. Super. 292, 124 A.2d 628 (1956) (dictum); Commonwealth ex rel. Wallace v. Burke, 169 Pa. Super. 633, 84 A.2d 254 (1946). This rule has been accepted in those jurisdictions which have considered the issue. See Bramblett v. State, 139 Ga.App. 745, 229 S.E.2d 484 (1976); State v. Osburn, 216 Kan. 638, 533 P.2d 1229 (1975); State v. Hale, 127 N.J.Super. 407, 317 A.2d 731 (App.Div.1974); State v. Kinsey, 7 Wash.App. 773, 502 P.2d 470 (1972). Accordingly, it has been held that on retrial, a ruling of the previous trial court on ...