NO. 390 PHILADELPHIA, 1981, Appeal from the double jeopardy in the Court of Common Pleas of Chester County, Criminal Division, at No. 1202-80; 1221-80.
Alan Ira Lourie, Assistant Public Defender, West Chester, for appellant.
Joseph W. Carroll, III, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Wieand, Beck and Hoffman, JJ.
[ 309 Pa. Super. Page 165]
Appellant David McClain, whose motion for a mistrial was granted, now appeals the denial of his motion to quash information for a new trial on the grounds of double jeopardy.
On July 16, 1980 McClain was arrested for Criminal Attempt-homicide, Rape, Robbery, Burglary, Aggravated Assault, and related charges. On July 23, 1980, he was again arrested for these offenses. McClain was brought to a joint trial of both series of charges in October 1980.
During a suppression hearing held prior to trial, the prosecutor learned of an incriminating statement made by McClain to a certain Detective Worth, when McClain was being questioned in connection with yet another rape for
[ 309 Pa. Super. Page 166]
which he was tried separately. This statement, in the file of the other case, included a reference to McClain's whereabouts at the time of one of the rapes in the trial at bar. The prosecutor in McClain's trial of October 1980 was an assistant district attorney with some five years experience who had only recently been assigned to McClain's case as a replacement for another prosecutor who was ill. The replacement prosecutor had not been in charge of pretrial discovery in the case (Suppression Hearing, 39), and therefore had learned of the incriminating statement belatedly and had not informed either defense counsel or the court of the documented statement.
Upon the court's learning of the existence of the statement in the other file, the following exchange took place (pp. 40-41):
THE COURT: . . . . Was this a written or ...