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decided: December 29, 1983.


No. 80-3-479, Appeal from Judgments of Sentence of Court of Common Pleas of Philadelphia - Criminal, entered February 26, 1980, at Nos. 554 and 557-559, September Term, 1976


Warren Hamilton, Philadelphia (court-appointed), for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Ronald Eisenberg, Marion E. MacIntyre, Deputy Attys. Gen., Philadelphia, for appellee.

Norris E. Gelman, Philadelphia, amicus curiae for NAACP.

Roberts, C.j., Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen, J., files a concurring and dissenting opinion.

Author: Roberts

[ 504 Pa. Page 35]


This appeal arises from the trial of appellant Robert Crenshaw in June of 1979 in connection with the stabbing death and robbery of Sara Tiers in her home on July 18, 1976, and the theft of a pocketbook from the home of Carol Havey on July 22, 1976. Appellant was found guilty of murder of the first degree, robbery, and two counts of burglary. Following the jury's verdicts of guilty, a sentence of death was imposed on the verdict of murder of the first degree. Concurrent sentences of ten to twenty years' imprisonment were imposed on the related robbery and burglary verdicts and ordered to run consecutive to the death sentence, and a sentence of five to ten years' imprisonment was imposed on the second burglary verdict and ordered to run consecutive to all other sentences.

At the time of appellant's arrest on August 23, 1976, appellant was also charged with murder, robbery and burglary in connection with the stabbing death of Barbara Coates on July 19, 1976. Upon motion of the Commonwealth, these charges were initially consolidated with the charges which form the basis of this appeal. Subsequently, the court granted a defense motion for severance, and the Commonwealth chose to try appellant first on the charges

[ 504 Pa. Page 36]

    relating to Barbara Coates.*fn1 On May 17, 1977, following a trial by jury, appellant was found not guilty on all counts.

Trial on the charges relating to Sara Tiers was initially scheduled to commence one week later, on May 24, 1977. Defense counsel, however, requested and was granted a continuance in order to obtain the notes of testimony of the Barbara Coates trial, at which evidence relating to all the offenses with which appellant was charged had been admitted. Counsel also immediately filed a motion to dismiss the charges relating to Sara Tiers and Carol Havey on double jeopardy grounds, on the theory that evidence of these offenses had already been presented as part of the Commonwealth's case-in-chief in the Barbara Coates trial. This motion was denied on November 4, 1977. Subsequent petitions for extensions of time filed by the Commonwealth pursuant to Criminal Procedural Rule 1100(c) were granted, resulting in the postponement of jury selection until October 16, 1978. Following the voir dire of a forty-five member jury panel on October 16, but prior to the selection of a jury, defense counsel became ill. He subsequently died in February 1979. New counsel was appointed to represent appellant, further Commonwealth extensions of time were granted, and jury selection ultimately began again on June 11, 1979, two years and ten months after appellant's arrest.

Immediately prior to the commencement of voir dire on June 11, 1979, the Commonwealth announced for the first time that it would seek the death penalty in this case. Over defense objection, the court ruled that the case would be considered a capital case, in which the parties would be permitted to question the veniremen concerning the death penalty and would each be permitted to exercise twenty peremptory challenges. See Pa.R.Crim.P. 1126.

On this appeal appellant renews his claim, raised pre-trial, that trial should not have been permitted to proceed because it allegedly violated the constitutional prohibition

[ 504 Pa. Page 37]

    against double jeopardy. In appellant's view, because he had previously defended against the Commonwealth's evidence when it was introduced at the earlier Barbara Coates trial, at which he was acquitted, he should not have been required to defend against this evidence a second time. In the Barbara Coates trial, evidence of the offenses committed against Sara Tiers and Carol Havey had been introduced by the Commonwealth, over defense objection, as tending to prove that appellant had committed the offenses against Barbara Coates as part of a common plan or scheme.

The constitutional prohibition against double jeopardy protects a defendant from being placed twice in jeopardy for the same offense. See generally Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). See also 18 Pa.C.S. ยง 109. However, where, as here, a defendant is charged with separate offenses, the only protection against successive trials available through the double jeopardy clause of the Fifth Amendment is the right embodied in the rule of collateral estoppel not to have a second trier of fact redetermine those issues " necessarily determined between the parties in the first proceeding." Commonwealth v. Zimmerman, 498 Pa. 112, ...

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