No. 161 Special Transfer Docket, No. 162 Special Transfer Docket, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section. Nos. 120, 122 and 126 September Term, 1971.
Norris E. Gelman, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Wieand, Nix and Wekselman, JJ.*fn* Wieand, J., files a concurring opinion, in which Nix, J., joins, as well as in the opinion of the court.
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Appellant, in 1972, was found guilty of murder in the first degree and three counts of aggravated robbery. His post-trial motions were denied and the subsequent judgment of sentence was appealed to the Pennsylvania Supreme Court which remanded for a hearing under the Post-Conviction Hearing Act. That hearing was held in conformity with the mandate of the Supreme Court and relief was denied. The denial of that relief occasioned a second appeal to the Pennsylvania Supreme Court which found that appellant's trial counsel was ineffective and remanded the case to the Court below for a new trial. Commonwealth v. Humphrey, 473 Pa. 533, 375 A.2d 717 (1977).
Prior to the ordered retrial, appellant filed a petition in the Court below seeking his discharge on the basis of a
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double jeopardy claim. That petition was denied and it is the denial of that petition which is now before the Court on appeal.
The Commonwealth argues that appellant has waived his double jeopardy claim by failing to raise it on his prior appeal from the judgment of sentence or in his Post-Conviction Hearing Act petition or the direct appeal which followed the denial of that relief. The Commonwealth argues that Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), and its progeny require defendants to brief and argue all possible issues at the earliest opportunity if they wish to avoid a finding of waiver. That general statement by the Commonwealth is undoubtedly correct, but has no application to the double jeopardy claim. It was not until the Supreme Court in Commonwealth v. Humphrey, supra, granted a new trial that the double jeopardy claim was cognizable by any court. On remand for a new trial, defense counsel is free to make any new motions which are appropriate without regard to what occurred at the prior trial. Commonwealth v. Oakes, 481 Pa. 343, 392 A.2d 1324 (1978). Accordingly, appellant has not waived his double jeopardy claim and the denial of that claim, although interlocutory, is appealable. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).
Turning to the merits of appellant's double jeopardy claim, we find no basis for a reversal of the conclusion reached below. Appellant contends that the ineffectiveness of his trial counsel, which was found by the Supreme Court in Commonwealth v. Humphrey, supra, had been exploited by the prosecutor and the trial judge and that such prosecutorial and judicial "overreaching" bars his retrial on double jeopardy grounds. He states three examples of this overreaching: (1) prosecutorial and judicial comments on his election to remain silent following his arrest; (2) use by the prosecutor of appellant's mug shot; and (3) use of a substitute medical examiner to testify in place of the medical examiner who did the autopsy when the original medical examiner became unavailable. Although appellant's trial
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counsel objected in the third instance, he did not offer any objection to the first two. Appellant's argument is based primarily on Mr. Justice Pomeroy's plurality opinion for an equally divided Court in Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918 (1978). That opinion holds that intentional misconduct by the prosecutor or the trial judge, motivated by bad faith or undertaken to harass or prejudice the defendant so as to afford the ...