No. 80-3-512, Appeal from the order denying relief under the Post Conviction Hearing Act by the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, February Term, 1976 No. 35
Timothy J. Savage (Court-appointed), Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div. Asst. Dist. Atty., Steven J. Cooperstein, Asst. Dist. Atty., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.
On January 5, 1976, appellant, Michael Sanford, met with approximately one dozen gang members in order to retaliate against someone who had previously harmed one of the members in appellant's gang. Armed with knives and screwdrivers, appellant and a dozen or so other members ambushed three boys coming out of a grocery store, stabbing all three and killing Steven Johnson. Appellant was placed under arrest after being questioned later the same evening.
Appellant, was tried without a jury before the Honorable Marvin R. Halbert, Court of Common Pleas of Philadelphia County. He was found guilty of murder of third degree, criminal conspiracy and various weapons offenses. Appellant filed a motion for a new trial and in arrest of judgment and on December 14, 1976, Judge Halbert granted appellant's motion for a new trial.
Shortly thereafter, appellant, represented by the same counsel, was retried before the Honorable Juanita Kidd Stout and was again convicted of murder in the third degree, criminal conspiracy and weapons offenses. Following a denial of posttrial motions, Judge Stout sentenced appellant to fifteen months to five years for murder of the third degree, computed from the time of arrest. Sentences
were suspended on the other convictions. Appellant did not file a direct appeal.
Subsequently, appellant filed a pro se petition under the Post-Conviction Hearing Act (P. C. H. A.).*fn1 New counsel was appointed and an amended petition was filed alleging that appellant was "placed twice in jeopardy when he was tried a second time for the same offense." Appellant's petition also alleged that he was denied effective representation because his attorney did not attempt to have the charges dismissed based on a violation of Pa.R.Crim.P. 1100(a)(2). The P. C. H. A. court denied the petition and appellant appealed to this Court.*fn2
We need not reach the merits of appellant's double jeopardy claim. Appellant's voluntary act of seeking and receiving a new trial constitutes a waiver of any double jeopardy claim. Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 352 (1972). See Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728 ...