No. 327 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, No. 354 February Term, 1971.
Joseph M. Smith, Philadelphia, for appellant.
Cynthia Severinsen, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hoffman, Roberts and Lipez, JJ.*fn*
[ 275 Pa. Super. Page 532]
On January 10, 1972, a jury convicted appellant of murder of the second degree, aggravated robbery and conspiracy. The Supreme Court, after finding the evidence sufficient to support the verdicts, reversed and granted a new trial on the murder charge because of an error in the trial court's instructions to the jury. See Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977) (plurality opinion). On October 17, 1977, a jury convicted appellant of murder of the second degree. After denying post-verdict motions, the trial court sentenced appellant to a term of imprisonment of 10 to 20 years concurrent to a term of 10 to 20 years previously imposed for the conviction for robbery. Appellant contends that (1) the evidence is insufficient to support the verdict; (2) the Commonwealth should not have been permitted to move for retrial; (3) the trial court improperly limited him to seven peremptory challenges at voir dire; (4) reference to appellant's membership in a gang improperly implied that he had engaged in previous crimes; (5) the trial court erred in instructing the jury on murder of the first degree, a crime for which he could not be convicted; and (6) the trial court erred in requiring the defense to address the jury first in summation. We affirmed.
Two witnesses observed several men, including appellant, take a man from a car and carry him to a lot. Later, they heard moaning coming from the lot and found the victim badly hurt. The witnesses immediately reported the crime to the police but did not reveal that they had seen appellant. About two weeks later, they informed the police of appellant's participation.
Appellant argues that the evidence is insufficient to support the verdict. At the second trial, the Commonwealth presented evidence identical in every material respect to that presented at the first trial and found by the Supreme
[ 275 Pa. Super. Page 533]
Court sufficient to sustain conviction for murder of the second degree. Accordingly, we must find that evidence sufficient to sustain the verdict of guilty of murder of the second degree. See Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283 (1977); Commonwealth v. Bruno, 268 Pa. Super. 15, 407 A.2d 413 (1979).
Appellant argues that, because he could not receive at his second trial any sentence greater than a term of imprisonment of 10 to 20 years concurrent to the sentence he received for robbery at the first trial, it was an abuse of discretion for the Commonwealth to prosecute him a second time for murder. The Commonwealth sought conviction for murder at retrial because a second sentence could influence appellant's chances for parole and for serving the maximum term of 20 years. The Commonwealth's decision to proceed to retrial was rational and therefore, not an abuse of discretion. See Commonwealth v. DiPasquale, 431 Pa. 536, 246 A.2d 430 (1968).
Appellant asserts that the trial court improperly limited him to seven peremptory challenges at voir dire. At the time of his first trial, appellant was entitled by statute to 20 peremptory challenges. Subsequently, the Legislature amended the statute to provide only seven peremptory challenges in trials for non-capital felonies.*fn** Appellant claims that reducing the number of peremptory challenges to which he was entitled after the time of the crime is an impermissible ex post facto law. This argument is without merit.
"In general, one of the following criteria must obtain before a statute, or the application thereof will be held invalid as an ex post facto law: (1) The law makes an act criminal which was not criminal when done; (2) The law aggravates a crime, or makes it greater than it was when committed; (3) The law changes a punishment, and makes it greater than ...