NO. 1070 PITTSBURGH, 1980, Appeal from the Order of October 2, 1980 In the Court of Common Pleas of Allegheny County, Criminal Division at No. CC7902828A
Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Howard K. Hilner, Pittsburgh, for appellee.
Hester, Beck and Van der Voort, JJ.
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The Commonwealth appeals from an October 2, 1980 order granting suppression of an in-court identification of
[ 314 Pa. Super. Page 541]
appellee, William James, as the perpetrator in an incident for which he was charged with involuntary deviate sexual intercourse, indecent assault, terroristic threats, and simple assault. Appellee pleaded guilty to those charges but subsequently petitioned to withdraw that plea of guilty, and that petition was granted.
Appellee moved to suppress testimony as to a composite drawing of the perpetrator, the photo identification, preliminary hearing identification and future in-court identification. On October 1 and 2, 1980, Judge Henry R. Smith presided over a suppression hearing. The suppression court denied the motion as to the composite, the photo array and the preliminary hearing, but granted the motion as to an in-court identification of appellee by the victim.
The case proceeded to trial on October 6, 1980 and on October 10, 1980, the trial court discharged the jury after ascertaining that the jurors were deadlocked and were unable to reach a verdict. On October 29, 1980, the Commonwealth appealed from the order granting suppression of the victim's in-court identification. The lower court held that since the Commonwealth proceeded to trial, it waived the right to appeal from the suppression order.
While this appeal from a suppression order after a mistrial for manifest necessity raises an issue of first impression in this Commonwealth, we are persuaded that since retrial in this case is not barred by double jeopardy considerations and since the notice of appeal was filed within thirty days of the October 2, 1980 order as required by Pa.R.A.P. 903(a), the Commonwealth has not forfeited its right of appeal from that order.*fn1
Where, as here, the jury is discharged because of an inability to reach a verdict, it is clear that retrial is not
[ 314 Pa. Super. Page 542]
barred by double jeopardy. As the Pennsylvania Supreme Court recently reiterated in Commonwealth v. Murry, 498 Pa. 504, ...