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decided: September 22, 1980.


No. 311 January Term, 1978, Appeal from Order denying Motion to Dismiss Indictment Charging Murder in the First and Second Degrees (Double Jeopardy) entered on August 18, 1978 by the Court of Common Pleas of Philadelphia County, as of January Term, 1978, Nos. 1082.


Thomas Colas Carroll, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Division, Marianne Cox, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., concurred in the result. Eagen, C. J., filed a dissenting opinion. Roberts, J., filed a dissenting opinion.

Author: Nix

[ 491 Pa. Page 374]


The sole issue presented in this appeal is whether the Commonwealth may now try appellant for murder of the first or second degree after the Supreme Court awarded a new trial, having reversed the judgment of sentence for murder of the third degree because of a failure during the guilty plea colloquy to adequately advise appellant of the elements of the crimes of which he was charged as required under Commonwealth v. Ingram.*fn1

On January 16, 1975, appellant Tabb was indicted on charges of murder, robbery, criminal conspiracy and possession of an instrument of crime arising out of a hold-up slaying in Philadelphia County on December 10, 1974. Thereafter, on June 9, 1975, appellant entered a negotiated plea of guilty to murder generally. As part of the plea agreement, the Commonwealth certified that the charge of murder rose no higher than third degree, recommended a sentence of ten to twenty years on the murder charge and five to ten years on the robbery charge. Additionally, the Commonwealth moved for a nolle prosequi of the weapons and conspiracy charges. After an on-the-record colloquy and a summary of the evidence, presented by the Commonwealth, the court accepted the guilty plea, and the Commonwealth's certification of third degree murder, sentenced appellant to the terms recommended by the Commonwealth and granted a nolle prosequi of the lesser charges of conspiracy and possession of an instrument of crime. From that action, appellant took his first direct appeal to this Court wherein the judgment of sentence was reversed and a new trial awarded, relying upon Pa.R.Crim.P. 319(a) and Commonwealth v. Ingram, supra, in finding the on-the-record colloquy did not meet the required standards. Commonwealth v. Tabb, 477 Pa. 115, 383 A.2d 849 (1978).

Prior to appellant's new trial he filed an omnibus pretrial motion claiming double jeopardy barred trial on murder of

[ 491 Pa. Page 375]

    the first and second degrees. After hearing on June 13, 1978, defendant's motion was denied. The instant interlocutory appeal is pursuant to Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). We now affirm the trial court's order denying appellant's motion and remand for trial.

Appellant argues double jeopardy under the federal and state constitutions bars retrial on charges of murder of the first and second degrees. He asserts Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979), does not apply because 1) he entered a plea of guilty to murder generally, while in Klobuchir the appellant entered a plea of guilty to murder in the third degree; and 2) the court's conviction of murder in the third degree in his case was an adjudication, alleged to be indistinguishable from a jury verdict or a bench finding in a non-jury trial. Appellant concludes the court's acceptance of the certification was an implicit acquittal of all higher degrees.

En passant, appellant alludes to the issues of collateral estoppel, autrefois acquit, and section 109 of the Pennsylvania Crimes Code. 18 Pa.C.S.A. ยง 109. Yet he correctly acknowledges those issues are not presented for review here.*fn2 We confine consideration to those protections afforded appellant under federal and state double jeopardy provisions. To the extent any of the aforementioned doctrines or code provisions presently intimated to be issues are later advanced as giving greater protection than the traditional constitutional one of double jeopardy, we now consider only the constitutional protection provided at this stage of the proceedings.*fn2a

[ 491 Pa. Page 376]

The essence of appellant's argument is, court acceptance of a plea agreement wherein defendant pleads guilty to murder generally and the prosecution certifies the degree together with presentation of a summary of its case constitutes an actual resolution in the defendant's favor of some or all of the factual elements of offenses of a degree or degrees higher than that of which defendant was convicted. Simply put, appellant says his case is not a plea agreement, but a court adjudication, and thus not controlled by Klobuchir. It is understandable why appellant would seek to distinguish Klobuchir. Klobuchir held federal constitutional requirements prohibiting double jeopardy do not bar retrial on higher degrees of murder after a plea of guilty to and a conviction of third degree murder are set aside upon defendant's procurement, and Pennsylvania double jeopardy requirements, citing Commonwealth v. Metz, 425 Pa. 188, 288 A.2d 729 (1967) also do not bar prosecution in such circumstances.

The attempted distinction between Klobuchir and this case is meritless because a guilty plea to murder generally, as well as a guilty plea to third degree, may be withdrawn before sentence. In the instant case, the plea was voided upon direct appeal. So the axis posture of adjudication or factual determination asserted by appellant ...

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