No. 588 January Term, 1976 Appeal from the Order of the Court of Common Pleas, Chester County, Pennsylvania, of June 28, 1976 No. 1494 of 1975
Robert C. Houpt, Joan D. Lasensky, Asst. Dist. Attys., for appellant.
William H. Mitman, Jr., West Chester, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Nix, J., filed a dissenting opinion in which Larsen, J., joined. Pomeroy, former J., did not participate in the consideration or decision of this case.
Appellee, Jewel Roberts, was indicted in two separate bills of indictment arising from the robbery and strangulation death of Ray E. Lowe. In the first bill, she was charged
with five specific counts: murder in the first degree, murder in the second degree, murder in the third degree, voluntary manslaughter, and involuntary manslaughter. The second bill of indictment charged appellee with burglary and conspiracy. A jury trial followed, and verdicts of not guilty were returned on the charges of murder in the first degree, murder in the third degree, voluntary manslaughter, and involuntary manslaughter. The jury found appellee guilty of burglary and conspiracy. Following several reports from the foreman that the jury was hopelessly deadlocked, a mistrial was granted at appellee's request as to the charge of murder in the second degree. When moving for a mistrial, appellant's trial counsel specifically reserved the right to subsequently argue that the not guilty verdicts operated to bar reprosecution on the charge of murder in the second degree. After notification that appellant intended to retry appellee on the charge of murder in the second degree, appellee petitioned the trial court to dismiss the charge. The court granted appellee's petition and quashed the indictment. Pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223 Art. II, § 202, 17 P.S. § 211.202 (Supp.1978-79), the prosecution now appeals to us.
The trial court held that one who is acquitted of lesser degrees of criminal homicide, namely murder in the third degree, voluntary manslaughter, and involuntary manslaughter, cannot be retried on a charge of second degree murder arising from the same factual situation. For the reasons that follow, we agree that appellee cannot be retried and therefore affirm the order of the trial court dismissing the indictment.
Rule 1120(d) of the Pennsylvania Rules of Criminal Procedure states:
"If there are two or more counts in the information or indictment, the jury may report a verdict or verdicts with respect to those counts upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has Page 503} agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed. When the counts in the information or indictment upon which the jury cannot agree are not included offenses of the counts in the ...