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decided: February 4, 1981.


No. 109 March Term, 1979, Appeal from the Order of the Court of Common Pleas of Beaver County, Pennsylvania, Criminal Division at No. 291 of 1979, denying the Appellant's Motion to Dismiss the First Degree Murder Charge


Leonard G. Ambrose, III, Erie, for appellant.

Michael J. Veshecco, Dist. Atty., Frank J. Scutella, Asst. Dist. Atty., Erie, for appellee.

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

Author: Kauffman

[ 493 Pa. Page 117]


This is an interlocutory appeal from the denial of a pretrial motion to dismiss the charge of first degree murder under an indictment for murder generally.

In September, 1977, after having negotiated a plea bargain with the District Attorney of Erie County, appellant, Bruce Earl Ward, pleaded guilty to murder generally. Under the terms of the plea agreement, it was stipulated that the degree of murder adjudicated would rise no higher than murder of the second degree. The trial court accepted the plea and stipulation, and, after a degree of guilt hearing in November, 1977, found appellant guilty of second degree murder.

[ 493 Pa. Page 118]

The plea was challenged subsequently on direct appeal. This Court held the plea colloquy inadequate, reversed the judgment of sentence and granted a new trial. Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978). Venue was transferred to Beaver County, where the appellant filed the instant motion, claiming that the Commonwealth's intention to proceed against him on a charge of first degree murder would place him twice in jeopardy for that crime. Our allowance of interlocutory appeal is predicated solely on the double jeopardy claim pursuant to our holding in Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).*fn1

The double jeopardy question raised here was addressed in Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979) and Commonwealth v. Tabb, 491 Pa. 372, 421 A.2d 183 (1980). The due process claim was not before the Court in either Klobuchir or Tabb, but the Opinions in Support of Reversal in Klobuchir and the Dissenting Opinions in Tabb alluded to it, both directly, by suggesting disposition of the issue under an assumption of plenary jurisdiction, and indirectly, by combining discussion of due process issues with the merits of the double jeopardy claim. In order to put an end to the uncertainty surrounding these related issues, we will address the due process claim in this case under our plenary jurisdiction.*fn2

Appellant relies upon, and recognizes that the strength of his claim derives entirely from, the Opinions in Support of Reversal in Klobuchir, supra. It will thus be necessary to address some of the arguments made therein (and, incidentally, in Mr. Justice Roberts' dissent in Tabb) while disposing of both the double jeopardy and the due process issues raised here.

[ 493 Pa. Page 119]


The defense of double jeopardy could be sustained here if, and only if, an "implied acquittal" had occurred under the rationale of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In Green, the United States Supreme Court held that a defendant who has once been tried by a jury on a greater charge but convicted only of a lesser included offense, and who has successfully attacked his conviction on appeal, may not subsequently be tried again on the greater charge. When presented with the option of convicting for first degree murder or a lesser offense, the jury in Green chose to convict for second degree murder, thus implicitly acquitting of and barring further prosecution on the first degree murder charge.

The due process claim arises out of the possibility that invocation of a defendant's appellate rights may be chilled by fear that greater punishment would be imposed after a successful appeal or collateral attack.*fn3 It is clear, however, from decisions of the United States Supreme Court and the unanimous position of numerous federal appellate and trial courts, that due process standards would be violated by the inhibition of appellate rights only where an implied acquittal has in fact taken place or when increased punishment results solely from judicial or prosecutorial vindictiveness toward the defendant for having pursued a successful appeal or collateral attack on his original conviction.


The essential question underlying the issue of "implied acquittal" is whether an actual adjudication has taken place on the merits of the charges sought to be stricken on retrial. The Majority Opinion in Tabb, supra, and the Opinion in Support of Affirmance in Klobuchir, supra, concluded that "the sine qua non for finding implicit acquittal is a failure to convict in the face of full opportunity for conviction " (Tabb, slip opin. p. 6, 421 A.2d 186, emphasis added; Klobuchir, 405

[ 493 Pa. Page 120]

A.2d at 886). This result is based on the unequivocal language in Green, supra, 355 U.S. at 190, 78 S.Ct. at 225, revealing quite clearly why the Supreme Court there concluded that an "implicit acquittal" had occurred:

Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree-murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder . . . .

[The jury] was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green's jeopardy for first degree murder came to an end when the jury was discharged . . . . (Emphasis supplied)

Relying upon the following language from Mr. Justice Roberts' Opinion in Support of Reversal in Klobuchir, appellant here suggests that the theory of implied acquittal in Green is applicable where the former conviction rests on the trial judge's acceptance of a guilty plea pursuant to a plea bargain:

In view of the trial court's authority in Pennsylvania to reject a negotiated plea, an adjudication in which it is determined that the plea is supported by a factual basis and in which the plea of guilty is accepted, necessarily includes the court's rejection of greater degrees of guilt. 486 Pa. at 262, 405 A.2d at 1368-69.

We refuse to adopt the premise, however, that a plea agreement affords an "opportunity" to rule on the merits of charges not embraced by the plea. By definition, the plea bargain eliminates the greater charges from consideration. The trial judge here was limited to the options of accepting or rejecting the plea and stipulation of degree. Once the plea was accepted, the first degree murder charge was excluded from any further inquiry into the degree of guilt.

[ 493 Pa. Page 121]

Although a trial court's acceptance of a guilty plea must be predicated upon an adjudication that there is a factual basis to support the plea, that conclusion only assures that the crime to which the plea is addressed actually occurred; it does not rule out the possibility that the crime adjudicated may be a lesser offense included in a more serious criminal transaction. As such, it does not evidence any opportunity, much less a "full" opportunity to rule on the greater charges as required under Green.*fn4

In United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), the United States Supreme Court ruled that "a defendant is acquitted only when 'the ruling of a judge, whatever its label, actually represents a resolution [in defendant's favor], correct or not, of some or all of the factual elements of the offense charged'", (emphasis added) 437 U.S. at 97, 98 S.Ct. at 2197, quoting from United States v. Martin Linen, 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). In United States v. Williams, 534 F.2d 119 (8th Cir.) cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976), a case involving degrees of bank robbery under 18 U.S.C. ยง 2113, the Eighth Circuit dealt with a claim of "implicit acquittal" arising out of the acceptance of a guilty plea on lesser offenses within the indictment. The Court distinguished the case from one in which the rationale of Green v. United States, supra, and a case essentially identical to Green with respect to the issue at bar, Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), would apply:

Defendant contends that his position is, for double jeopardy purposes, indistinguishable from that of Green or Price, that it is immaterial whether the former conviction on the lesser charge resulted from a trial on both the greater and lesser charges or from a plea to the lesser charge only.

[ 493 Pa. Page 122]

We cannot agree. The Court in Price, supra, 398 U.S. at 328-29, 90 S.Ct. at 1760-61, 26 L.Ed.2d at 304-05, states that its holdings in both Green and Price rest on two premises. First, a jury's verdict of guilty on a lesser charge is an "implicit acquittal" on the greater charge. Second, a defendant's jeopardy on the greater charge ends when the first jury is given a "full opportunity" to return a verdict on that charge and instead returns a verdict on the lesser charge only. Neither premise is ...

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