No. 404 October Term, 1979 Appeal from an Order of the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 501-503 September Term, 1977.
Burton A. Rose, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Wickersham and Lipez, JJ.
[ 282 Pa. Super. Page 276]
Appellant Robert P. Murphy brings this appeal from an order of the court below refusing his motion to dismiss the prosecution on the grounds of double jeopardy. For the reasons which follow, we affirm the order and remand for trial.
On September 14, 1977, appellant, a police officer for the City of Philadelphia, was charged in three Informations with simple assault, aggravated assault, official oppression, and obstructing administration of the law.*fn1 Trial commenced before a jury on October 16, 1978 and proceeded through October 27, whereupon appellant's request for a mistrial was granted. Facts adduced at trial revealed that in August of 1976, appellant was the next door neighbor of the Trost family in Northeast Philadelphia. There had been some history of enmity between the two families as appellant and his wife had repeatedly complained about the loud and boisterous behavior of the Trosts, including unseemly lewd and noisy parties at all hours of the night. In the early morning hours of August 28, 1976, appellant and several fellow officers arrested the Trost boys and complainant Charles Murray in the Trost home for disorderly conduct. At the Seventh District station, as appellant attempted to interview Murray in connection with the arrest, an altercation erupted between the two. Murray testified that appellant suddenly became infuriated and struck him with a blackjack, while appellant insisted that he only struck Murray after Murray hit him in the face.
The events which precipitated the mistrial were as follows. To buttress the defense position that Murray was the aggressor on the night in question, appellant called Officer Fred Velez who was present in the room wherein the affray occurred. Officer Velez testified on direct examination:
As I was turning around, I observed the other male strike Detective Murphy in the chest, the detective going
[ 282 Pa. Super. Page 277]
backwards and instinctively coming right back towards the other male. I seen the other male bounce off or sort of bounce off the wall, his head hitting the wall, and come back at Detective Murphy again. R.R. 1275a.*fn2
In order to impeach Officer Velez, the Commonwealth sought to call Officer Leon Hill to whom Velez had allegedly made a prior inconsistent statement. Responding to a defense request for an offer of proof as to what Hill would say, the assistant district attorney told the court:
[Assistant District Attorney] Hill would say that he went to the 7th District in November sometime and talked to Fred Velez, who showed them the room in which the incident between Murphy and Murray took place. At that time Velez, in describing what occurred, said he heard an altercation, turned around and saw Murphy going back as if he had been pushed or punched in the chest, but he ...