No. 385 January Term, 1979, Appeal from an Order dated August 24, 1979, of the Court of Common Pleas of Delaware County, as of No. 5766 of 1978.
Gerald Jay Pomerantz, Philadelphia, Hillel Lewis, Delaware County, for appellant.
David E. Fritchey, Asst. Dist. Atty., Delaware County, for appellee.
Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Larsen, J., notes his dissent. O'Brien, C. J., did not participate in the consideration or decision in this case.
This is an appeal from a decision by the Delaware County Court of Common Pleas denying appellant's pre-trial motion
to bar retrial on the charges of murder of the third degree, voluntary and involuntary manslaughter.*fn1 Appellant was arrested December 4, 1978 and charged with the various degrees of criminal homicide, aggravated assault, simple assault, possession of firearms without a license, possession of instruments of crime and criminal conspiracy. The charges flow from the shooting death of the victim, Harry Kenny Evans, which occurred on December 1, 1978, outside of the Chadd's Ford Tavern. At trial the jury returned verdicts of not guilty as to murder of the first degree and simple assault, the victim in each instance being the deceased, but was unable to reach a verdict as to the other charges.*fn2
Appellant filed a petition requesting, inter alia, that the homicide charges be dismissed.*fn3 Appellant argues that the verdict returned by the original jury precludes a subsequent trial and possible conviction of the remaining degrees of homicide. The underlying question is whether the principle of double jeopardy would permit a retrial for the remaining degrees of homicide where appellant has been found not guilty of committing a simple assault upon the deceased victim.
We note that appellant argues, inter alia, that rules of procedure 1120(d) and (e)*fn4 entitle him to the relief sought.
However, the instant interlocutory appeal is pursuant to Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977) and Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), see n. 1, which limits the scope of the review to constitutional questions relating to double jeopardy. Commonwealth v. Tabb, 491 Pa. 372 n. 2, 421 A.2d 183 n. 2 (1980). Our consideration here will be confined to those concerns which fall within the purview of the constitutionally guaranteed ...