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decided: July 15, 1980.


No. 392 January Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lycoming County, Criminal, at No. 76-10, 708, No. 207 January Term 1979, Appeal from the Order of the Court of Common Pleas of Lycoming County, Criminal, at No. 76-10, 491, Entered: No. 392 filed in Supreme Court April 4, 1977, No. 207 filed in Superior Court April 2, 1979 at 698 October 1979 certified to Supreme Court May 18, 1979


Gregory V. Smith, Chief Public Defender, George E. Lepley, Jr., Williamsport, for Waters.

Robert F. Banks, First Asst. Dist. Atty., for Com.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Flaherty, J., filed a concurring and dissenting opinion. Larsen, J., filed a dissenting opinion.

Author: Eagen

[ 491 Pa. Page 88]


This involves two appeals stemming from the prosecution of Gary D. Waters on several charges following a criminal episode in Lycoming County. One appeal has been filed by Waters, and the other by the Commonwealth. To clarify the issues, we detail the background garnered from the record.

On April 13, 1976, Waters and Paul Allen agreed to commit armed robberies in the central Pennsylvania area. The two had recently returned to their joint home in East Berlin, Pennsylvania,*fn1 from Las Vegas where they had lost most of their money in an attempt to implement Allen's scheme for winning at dice. Allen already owned a .22 calibre pistol, and the two men purchased a rifle. They practiced firing the weapons that afternoon. After placing the weapons in the Allen car, the two men and their families drove to the home of a friend in Williamsport where the

[ 491 Pa. Page 89]

    family members were dropped off. During the drive and several stops at homes of acquaintances, both men consumed alcoholic beverages.

Allen and Waters then proceeded to the Williamsport apartment of Diane Buck who was known to Allen. Allen suggested they go in "and maybe get a piece of ass and little bit of money." When Allen was unable to break in the door, Waters opened it with a karate kick. Once inside, the men proceeded to a bedroom where they found Diane Buck and Terry Brennan in bed nude. Allen fired a shot between the couple, took Diane Buck from the bed, and, for the next one and one-half hours, pushed, beat, and shoved her around the apartment while attempting, unsuccessfully, to rape her. During this time, Waters kept guard over Brennan and took his cash and watch. At some point, when Waters left the room to get a cigarette, Allen entered the bedroom and shot Brennan in the neck with the pistol. Later, when all four persons were in the bedroom, Allen forced Diane Buck onto the bed with Brennan, who was injured and bleeding, and ordered her to ask him about his injuries. He also ordered Waters to rub Diane Buck's stomach and Buck to "shake it 'round like you enjoy it." He then took Buck out of the room and continued his efforts to rape her leaving Waters in the room with Brennan.

Waters whispered to Brennan he would get him help and would try to mislead Allen by saying in a loud voice that he was going to finish Brennan off. He did so and shot his weapon into the air. He exited the room, told Allen he had killed Brennan, and encouraged him to leave. Allen went to check whether Brennan was really dead. By Diane Buck's account, Allen threatened to kill both her and Waters if Brennan was not, in fact, dead. As Allen entered the bedroom, Waters shot him from behind. Allen died instantly.

Waters advised Diane Buck to call an ambulance, but, when she could not compose herself sufficiently to complete the call, Waters himself called the police. He remained at the apartment until the police arrived and, later that night,

[ 491 Pa. Page 90]

    gave a statement to the police concerning the evening's events. Brennan's money was found in Waters' pocket, and his watch was later found in the holding cell in which Waters was detained that evening.

On April 14, 1976, Waters was charged with the murder of Allen, but this charge was later withdrawn by the district attorney who concluded this killing was justifiable homicide. At the same time, Waters was also charged with the attempted murder of Brennan, burglary, theft, and conspiracy. His pleas of guilty to these charges were accepted by the court on May 21, 1976, and sentence was deferred. However, when Brennan died on May 29 from the gunshot wound inflicted by Allen, Waters was rearrested and charged with the murder of Brennan.

On September 13, 1976, Waters requested permission to withdraw the guilty pleas entered on May 21, which request was objected to by the Commonwealth and denied by the trial court on September 20, 1976. Sentence was imposed on these convictions later the same day. Waters filed a timely appeal in the Superior Court.

On October 1, 1976, Waters filed a motion to quash the murder charge on the ground of double jeopardy. The court denied this motion on November 2, 1976. On November 13, 1976, Waters was convicted by a jury of murder of the second degree for the killing of Brennan and was later sentenced to life imprisonment. Waters' appeal in this Court (No. 392) is from that judgment.

On April 28, 1978, the Superior Court reversed the judgments and convictions based on Waters' guilty pleas of May 21, 1976 and remanded the record to the trial court with directions to permit the withdrawal of the guilty pleas;*fn2 the trial court subsequently followed this mandate. Waters then filed a motion to quash the charges of attempt-murder of Brennan, burglary, theft, and conspiracy on the grounds of double jeopardy and a violation of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (Campana I), vacated

[ 491 Pa. Page 91414]

U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973); reinstated on remand 455 Pa. 622, 314 A.2d 854 (Campana II), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). On March 14, 1979, the trial court rejected the motion to quash for the reasons asserted by Waters, but did quash the attempt-murder charge ruling sua sponte that the attempt-murder offense merged with the murder offense. The Commonwealth filed an appeal in the Superior Court challenging the correctness ...

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