Joseph A. Ciccitto, Asst. Public Defender, Francis M. Walsh, Norristown, for appellant.
Ronald T. Williamson, Chief, Appeals Div., Joseph Hylan, Norristown, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Nix, J., files a dissenting opinion.
This is an appeal, by allowance, from an order of the Superior Court, 262 Pa. Super. 268, 396 A.2d 748, affirming an order of the Court of Common Pleas of Montgomery County which denied the petition of appellant Sandy Mitchell to withdraw his guilty plea. We conclude that the plea was entered to charges on which the defendant had already been adjudged not guilty, in violation of the constitutional prohibition against double jeopardy embodied in both the federal and Pennsylvania Constitutions. The order of the Superior Court, therefore, is reversed.
On March 20, 1976, Norristown police filed a written complaint charging appellant with simple assault, aggravated assault, terroristic threats, and recklessly endangering another person for the alleged beating of an acquaintance, Helen Gilbert. That day appellant was arrested. While in police custody, appellant allegedly threatened Gilbert in a telephone call made to Gilbert the following day. This alleged call formed the basis of a second complaint, filed on March 21, charging appellant with an additional count of terroristic threats.
At a consolidated preliminary hearing, the Commonwealth presented testimony of Gilbert and the police officer who had heard appellant make the allegedly threatening telephone call. Appellant was held for trial on all five charges. Informations on the charges followed.
The case was scheduled for trial on August 11, 1976, approximately five months after the filing of the complaints. Appellant did not appear, a bench warrant was issued, and appellant was apprehended.
Two months later, on October 14, 1976, the case was called for trial. Acting upon the representation of appellant, counsel for appellant advised the court and the prosecuting attorney that alleged victim Gilbert had decided not to testify. After calls for the Commonwealth's witnesses went unanswered, the court proceeded to find appellant not guilty.
Thereafter, the Commonwealth advised the court that Gilbert did wish to testify, and that she had not been present because the Commonwealth had assumed that the proceedings on October 14 would lead to a guilty plea. Three weeks after finding appellant not guilty, the court entered the following order:
AND NOW, this 4th day of November, 1976, the finding of not guilty on October 14, 1976, is hereby revoked.*fn* Defendant is ...