No. 824 April Term, 1977, No. 842 April Term, 1977, Appeals from the Orders of the Court of Common Pleas of Allegheny County, Pennsylvania, at Nos. CC7700664-A and CC7700652A, Criminal Division
Sally Frick, Pittsburgh, for appellant.
Susan Ruffner, Assistant District Attorney, Pittsburgh, for appellee.
Cercone, President Judge, and Wieand and Hoffman, JJ. Hoffman, J., files a dissenting statement.
[ 272 Pa. Super. Page 285]
The instant appeal arises from the refusal of the lower court to dismiss appellants' indictments which led to appellants' trial a third time on the charges of illegal possession and possession with intent to deliver a controlled substance, heroin.*fn1 Appellants claim the third trial will offend against their constitutional right not to be twice placed in jeopardy.
[ 272 Pa. Super. Page 286]
We disagree and will affirm the order of the court below. The relevant facts are as follows.
On January 5, 1977, five Pittsburgh Police Officers executed a search warrant for a residence in the City of Pittsburgh, and arrested appellants, Lionel and Maxine Walls. When the police forcibly entered the residence, stipulated to be that of Maxine Walls, they observed Lionel Walls withdrawing his arm from a hallway closet. The police removed a leather coat from the closet, and a plastic bag containing seventeen foil packets fell to the floor.*fn2 On the closet shelf a .25 calibre automatic pistol was discovered.*fn3 Also seized as a result of the warrant and the arrests were a police scanner tuned to monitor police channels, $119.00 in cash, and some documents tending to establish Lionel's residence.
During the development of the Commonwealth's case in chief at the Walls' first trial, which proceeded before a judge sitting without a jury, the Commonwealth sought to introduce the pistol into evidence against them. The Commonwealth's theory was that those who deal in narcotics usually own firearms for protection, and that ownership of the pistol, therefore, was some evidence of conscious dominion and control of the heroin. See Commonwealth v. Santiago, 462 Pa. 216, 340 A.2d 440 (1975); Commonwealth v. Harris, 241 Pa. Super. 7, 359 A.2d 407 (1976). (The police scanner was to be offered into evidence on a similar ground.) Defense counsel promptly objected and moved for a mistrial. After lengthy argument on the point, the trial judge granted the mistrial motion despite the fact that the case was being tried without a jury.
The Walls' second trial also commenced before a judge sitting without a jury. Apprised of the general nature of
[ 272 Pa. Super. Page 287]
the problem which arose concerning the pistol at the first trial, the trial judge conducted a pre-trial conference with counsel. Although the problem of prejudicial evidence in a non-jury trial was discussed in the abstract, the precise nature of the objectionable evidence was not mentioned. Realizing the futility of seeking a definitive ruling from such a general discussion, the Commonwealth suggested that the trial judge review and rule upon the admissibility of the particular evidence prior to beginning the trial. However, counsel for Lionel Walls objected, and the trial judge refused to rule on the admissibility of the evidence until trial, indicating instead only that his judicial philosophy was substantially similar to that of the previous trial judge. Consequently, the Commonwealth's second witness again testified to the discovery and seizure of the ...