No. 1199 Philadelphia, 1982, Appeal from the Double Jeopardy, Court of Common Pleas, Criminal Division, Philadelphia County, Nos. 2013, 2014, 2015 and 2021 January Term, 1980
Timothy J. Savage, Philadelphia, for appellant.
Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cavanaugh, Brosky and Popovich, JJ.
[ 330 Pa. Super. Page 227]
This is an interlocutory appeal*fn1 by the appellant, Robert Lark, from the lower court's order denying his Motion to Dismiss the Bills of Information on Double Jeopardy Grounds.*fn2 We affirm.
An examination of the record reveals the following. At a jury trial before the Honorable Theodore B. Smith, Jr., the Commonwealth presented its case against the appellant on charges of murder,*fn3 possessing instruments of crime,*fn4 prohibited
[ 330 Pa. Super. Page 228]
offensive weapons,*fn5 and terroristic threats.*fn6
One of the Commonwealth's witnesses, policeman Barry Wilson, was called to testify by the Commonwealth, upon the judge's request. The prosecutor diligently attempted to alert Judge Smith to potential problems in calling Wilson at that time, and requested a discussion at sidebar with the court to explain these problems, but the request was refused. The circumstances under which Wilson was called as a witness is described in the following excerpt from the trial record.
THE COURT: Have you another witness, short witness?
MR. CAMPOLONGO: I don't think that our next one will be all that short, sir. So it may be --
THE COURT: Well, don't you have any witness we can use fifteen minutes because we did not give this jury the opportunity to work?
MR. CAMPOLONGO: I know, sir.
THE COURT: Is there any witness that you have just of any short duration? We can interrupt. Bring the next witness in. Next witness.
MR. CAMPOLONGO: May I see your Honor at side bar.
THE COURT: No. Call your next witness.
MR. CAMPOLONGO: There may be a problem, sir. The next witness --
THE COURT: There may be a problem? Call the next witness. We'll ...