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decided: June 6, 1979.


No. 151 March Term, 1978, Appeal from the Order entered on September 5, 1978 in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division of Nos. CC7506689 and CC7506801.


Michael M. Mullen, Jr., Michael W. Zurat, Mullen & Zurat, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, K. Alexander Mericli, Asst. Dist. Attys., Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Nix, J., filed an Opinion in Support of Affirmance in which O'Brien and Larsen, JJ., joined. Eagen, C. J., filed an Opinion in Support of Reversal. Roberts, J., filed an Opinion in Support of Reversal and Remand for Trial on Charges not to Exceed Murder of the Third Degree. Manderino, J., filed an Opinion in Support of Reversal.

Author: Per Curiam

[ 486 Pa. Page 244]


The Court being equally divided, the order of the Court of Common Pleas of Allegheny County is hereby affirmed.


NIX, Justice.

The single issue presented in this appeal is whether the Commonwealth may now try appellant on a first degree murder charge, after a Post Conviction Hearing Court vacated judgments of sentence entered on appellant's earlier negotiated plea of guilty to third degree murder and aggravated assault and awarded appellant a new trial. The procedural posture, necessary for a full understanding of the question, may be summarized as follows. Appellant, Howard Klobuchir, was indicted on charges of murder and voluntary manslaughter with regard to the death of Richard Bates. He was also charged with aggravated assault and recklessly endangering another person with reference to conduct involving his wife, Bertha Klobuchir. After indictments were returned on the above complaints, appellant and

[ 486 Pa. Page 245]

    his counsel entered into plea negotiations with the prosecutor, the result of which was an agreement whereby appellant would plead guilty to murder of the third degree and aggravated assault in return for which the Commonwealth would not seek a conviction of a higher degree of homicide and would move to dismiss the other charges. On March 10, 1976 after a recorded colloquy, the trial court accepted the terms of the agreement, dismissed the latter two charges, and sentenced appellant to ten to twenty years imprisonment on the murder charge and five to ten years imprisonment on the aggravated assault offense. Appellant took no direct appeal from these judgments of sentence.

On November 14, 1977, appellant sought relief under the Post Conviction Hearing Act (PCHA), 19 P.S. § 1180-1 et seq. (Supp.1978-79), challenging, inter alia, the validity of his guilty pleas. After a hearing, the PCHA court, on January 17, 1978, granted appellant a "new trial", or more accurately, the right to plead anew and demand trial by jury.*fn1 Trial on the original indictments was originally scheduled for April 3, 1978 but was re-scheduled for September 5, 1978 at appellant's request. On September 5, 1978, appellant filed a pre-trial application, under Pennsylvania Rule of Criminal Procedure 306, asserting that the double jeopardy provisions of the federal and state constitutions prohibit the Commonwealth from trying appellant on any homicide charge higher than third degree murder, the charge to which appellant originally pleaded guilty.*fn2 Although captioned as an "Application to Dismiss", appellant's

[ 486 Pa. Page 246]

    pre-trial motion in effect sought a ruling that appellant could be tried only for third degree murder. Such a ruling would bar prosecution for murder of the first degree under the indictment. After a hearing and the submission of memoranda of law by both parties, the trial court denied appellant's application on November 8, 1978. Appellant appealed to this Court from that denial.*fn3 For the following reasons, we affirm that denial.

In this Court, appellant advances three grounds for relief: (1) The double jeopardy protection embodied in both the Pennsylvania and United States Constitutions, Pa.Const., art. I, § 10 and U.S.Const. amend. V, prohibit the Commonwealth from trying appellant on any homicide charge higher than third degree murder; (2) federal due process requirements prohibit the Commonwealth from trying appellant on any homicide charge higher than third degree murder; and (3) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution bars the Commonwealth from trying appellant on any homicide charge higher than third degree murder.


The Commonwealth argues vigorously that appellant's latter two contentions are not properly before this Court. We agree.

[ 486 Pa. Page 247]

There seems to be little question that double jeopardy, due process, and equal protection are historically and analytically distinct areas of constitutional concern.*fn4 See North Carolina Page 247} v. Pearce, 395 U.S. 711, 719, 722, 723, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Commonwealth v. Henderson, 482 Pa. 359, 365 and nn. 2 and 3, 393 A.2d 1146, 1149 and nn. 2 and 3 (1978); Comment, The Constitutionality of Reindicting Successful Plea Bargain Appellants on the Original, Higher Charges, 62 Calif.L.Rev. 258, 259 and n.8 (1974). See also J. A. Sigler, Double Jeopardy: The Development of a Legal and Social Policy 4, 8-10 (1969). Appellant has submitted to this Court three separate grounds for relief, two of which, due process and equal protection, were not addressed by the parties or the court below. Pennsylvania Rule of Criminal Procedure 306, governing pre-trial motions, states in pertinent part:

It [the motion] shall state specifically the grounds upon which each type of relief requested therein is based, setting forth for each type of relief requested the facts in consecutively numbered paragraphs, and shall specify each such type of relief requested.

All grounds for the relief demanded shall be stated in the motion and failure to state a ground shall constitute a waiver thereof.

Pa.R.Crim.P. 306(b), (e).

In the instant case, the sole ground for relief stated in appellant's motion was that of double jeopardy. See note 2 supra. Similarly, appellant's brief in the trial court in support of this motion focused exclusively on the double jeopardy question, and, understandably, the Commonwealth's brief in opposition below responded only to appellant's claim that the contemplated trial would unconstitutionally place him twice in jeopardy. Moreover, the trial court's opinion analyzed appellant's claim only in terms of the alleged double jeopardy violation.

The appellate companion of Rule 306 is Pennsylvania Rule of Appellate Procedure 302(a), which states:

[ 486 Pa. Page 248]

Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.

Pa.R.A.P. 302(a).

This salutary and fundamental principle of appellate review has been applied time and again in cases where an appellant approaches this Court with a legal theory not presented to the court below. See Kimmel v. Somerset County Commissioners, 460 Pa. 381, 384, 333 A.2d 777, 779 (1975); Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975); Commonwealth v. Branham, 467 Pa. 605, 359 A.2d 766 (1976); Commonwealth v. Pritchitt, 468 Pa. 10, 359 A.2d 786 (1976). See also Pa.R.A.P. 2116(c), 2118(e). Because appellant deprived the trial court of the opportunity to consider the due process and equal protection grounds now raised in this Court, we hold that these issues are not properly before us.*fn5


A decade ago, the United States Supreme Court held that "the double jeopardy prohibition of the Fifth Amendment . . . [applies] to the States through the Fourteenth Amendment". Benton v. Maryland, 395 U.S. 784, 794-95, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). More

[ 486 Pa. Page 249]

    recently, that Court held that federal rules governing the point at which jeopardy attaches are an integral part of the double jeopardy protection and, therefore, apply with equal force to state criminal proceedings. Crist v. Bretz, 437 U.S. 28, 37, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978). Because the Double Jeopardy Clause seeks, at least in part, to guarantee the defendant's "valued right to have his trial completed by a particular tribunal", id. at 36, 98 S.Ct. at 2161, citing, inter alia, United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), the federal jeopardy attachment rules have been articulated by reference to certain events which clearly signal the beginning of trial on the cause. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). In a jury trial, jeopardy attaches when a jury is empaneled and sworn, and in a bench trial, jeopardy attaches when the court begins to hear evidence. Id. at 388, 95 S.Ct. 1055. Thus, the prohibition of double jeopardy, as it relates to subsequent prosecutions, is simply irrelevant until jeopardy has once attached, that is, "until a defendant is 'put to trial before the trier of facts, whether the trier be a jury or a judge.'" Id. at 388, 95 S.Ct. at 1064, quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). We can conceive of no reasonable extension of these settled constitutional principles which would lead us to conclude that the prosecution of appellant for first degree murder places him in jeopardy a second time for that charge. Although appellant was originally indicted*fn6 on a count which included first degree murder, the charge of first degree murder was never submitted to a trier of fact. Appellant's federal double jeopardy claim fails for the simple reason that he was never, in constitutional terms, placed once in jeopardy on the charge of first degree murder.*fn7 The most we can concede is that upon the

[ 486 Pa. Page 250]

    court's acceptance of appellant's guilty plea to third degree murder, jeopardy attached as to that offense.*fn8 See United States v. Williams, 534 F.2d 119, 120 (8th Cir.) (dictum), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976). However, this concession does not alter our conclusion that appellant has yet to be placed once in jeopardy for murder of the first degree. See Note, 50 Notre Dame Law. 857, 869 (1975).

In pressing his federal double jeopardy claim, appellant would have us extend the holding of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In Green, defendant was indicted and tried by a jury on charges of arson, first degree murder, and second degree murder. Id. at 184-85, 78 S.Ct. 221. The jury found him guilty of arson and second degree murder, no specific verdict being returned on the first degree murder count. Id. at 186, 78 S.Ct. 221. Green successfully appealed his second degree murder conviction and was awarded a new trial*fn9 at which he was tried and convicted again for first degree murder under the original indictment. Id. On appeal, the United States ...

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