No. 80-3-744, Appeal from the September 19, 1980 Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia at No. 350 April Term, 1976.
Timothy J. Savage, Philadelphia (Court-appointed), for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., filed a dissenting opinion in which McDermott, J., joined. Hutchinson, J., filed a dissenting opinion.
The appellant, DeWayne Beck, was arrested on March 26, 1976 in connection with the stabbing death of William Jackson. Subsequently, the appellant admitted the stabbing*fn1 and was charged with murder, manslaughter, conspiracy, possession of instruments of crime, and possession of a concealed weapon. The two possession charges were nol prossed and appellant was tried on the murder, manslaughter and conspiracy charges. Following the trial, the jury returned the following verdict: not guilty of first degree murder; not guilty of voluntary manslaughter, not guilty of criminal conspiracy; and guilty of third degree murder. After post verdict motions were denied and a sentence of
imprisonment imposed, Beck appealed to this court. On appeal the judgment of sentence was reversed and a new trial granted on grounds not relevant to the issues here.*fn2
Appellant was retried before a jury on charges of third degree murder and voluntary manslaughter.*fn3 Appellant Beck filed no pre-trial motions nor did he make any objection to the voluntary manslaughter charge prior to or during the evidentiary phase of the retrial. At the conclusion of the evidence and closing arguments, the court charged the jury on, among other things, third degree murder and voluntary manslaughter. The jury returned a verdict of guilty of voluntary manslaughter. The appellant objected to the recording of the verdict on the grounds that his conviction of voluntary manslaughter violated his constitutionally protected right to be free from being twice placed in jeopardy of the same offense. His objection was based on the noteworthy fact that he had been previously found not guilty of the identical crime on the same facts. Appellant's objection was overruled and his post trial motions which included a motion in arrest of judgment were denied. Appellant was sentenced to 1 1/2 years to 3 years 5 months imprisonment on his conviction and this direct appeal followed.
The appellant Beck argues that his conviction on retrial of voluntary manslaughter, a crime for which he previously was found not guilty, and the judgment of sentence imposed by the trial court are invalid. We agree and reverse.
When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the ...