No. 284 January Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia, at No. 995 July Term, 1977
Donald G. Joel, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Division, Asst. Dist. Atty., Lise Rapaport, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., files a concurring opinion.
Appellant, James Lee, was convicted in a non-jury trial of murder of the third degree for the June 23, 1977 stabbing death of Silas Fowler. Post-verdict motions were denied and appellant was sentenced to a prison term of two to ten years. This appeal followed.
In this appeal, appellant raises one issue. He claims that his right against being twice placed in jeopardy was violated when he was forced to go to trial in the instant matter. The facts are as follows.
In November, 1977, appellant's first non-jury trial commenced. During the Commonwealth's case-in-chief, one William Crawford was called as a witness. As the appellant's version of the incident would have indicted that Crawford was criminally liable, appellant's trial counsel requested the court to advise Crawford of his Fifth Amendment privilege
against self-incrimination. When the Commonwealth objected, an in camera hearing was held.
The Commonwealth advised the trial court that Crawford was a witness only. The trial court then raised the possibility that the Commonwealth could very well change its view should appellant be acquitted. The following exchange occurred:
"THE COURT: Have you given him any kind of immunity? You certainly haven't given him formal immunity. There's a, there's a possibility that you can give ...