No. 1014 Pittsburgh, 1981, Appeal from the Order of October 2, 1981, Court of Common Pleas, Allegheny County, Criminal Division at No. CC 8100941A.
Robert L. Campbell, Pittsburgh, for appellant.
Kenneth Benson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Brosky, Johnson and Montgomery, JJ.
[ 308 Pa. Super. Page 238]
This is an appeal from the Order of October 2, 1981 denying Appellant's Motion to Dismiss Indictment on Plea of Double Jeopardy. For the following reasons, we affirm.
Appellant was arrested on January 16, 1981 for the shooting death of Eric Nemec, a co-worker of Appellant. An information was filed on February 27, 1981 charging
[ 308 Pa. Super. Page 239]
him with criminal homicide.*fn1 A jury trial was originally scheduled for June 22, 1981. As a result of schedule conflicts and the need for additional time for case preparation, the trial date was rescheduled to July 13, 1981. On that date, Appellant appeared in open court before the Honorable James P. McGregor and after waiving his right to a trial, entered a general plea of guilty to the charge. It was agreed that Judge McGregor would determine the degree of homicide upon the conclusion of the Commonwealth's evidence and after presentation of psychiatric testimony by the defense. Upon the conclusion of the Commonwealth's case and after presentation of testimony by one defense witness, a continuance was granted until August 5, 1981 because of the inability of Appellant's expert witnesses to be present in court.
Subsequent to the July 13th hearing, certain allegedly prejudicial letters were written by members of the victim's family and directed to, inter alia, Judge McGregor, the district attorney and certain members of the media. The letters included several references to certain evidence not presented in the Commonwealth's case and in general were highly critical of the presentation of the Commonwealth's case and were clear concerning the writers' hatred of Appellant. The letters communicated the writers' fears that Appellant would not be convicted of first degree murder because of the inadequacies of the presentation of the Commonwealth's case.
Appellant thereafter filed a motion to withdraw his guilty plea which was subsequently granted by Judge McGregor, who also recused himself from any further consideration or deliberation in the case.
Upon reassignment of the case to a different judge, Appellant filed a Motion to Dismiss on the basis of double jeopardy. The motion was denied on ...