No. 853 Pittsburgh, 1983, Appeal from the Orders entered June 17, 1983, Court of Common Pleas, Allegheny County, Criminal Division at No. 8104236.
Edward A. McQuoid, Jr., Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Brosky, Johnson and Montgomery, JJ.
[ 335 Pa. Super. Page 511]
Appellant takes this appeal from the orders of June 17, 1983 denying his pre-trial Motion to Dismiss Indictment [sic] and pretrial Motion to Bar Imposition of the Death Penalty. We now affirm the order denying the Motion to Dismiss and quash the appeal from the denial of the Motion to Bar Imposition of the Death Penalty.
Appellant was charged on June 10, 1981 with criminal homicide in the death of Norman McGregor. The Commonwealth contends that Thomas Skelton had offered a "contract" to kill McGregor and that appellant and at least six others were accomplices involved in carrying out the alleged "contract" killing. All co-participants were charged separately. Skelton was acquitted of the charge.
Appellant subsequently filed the pre-trial Motions to Dismiss and Bar Imposition of the Death Penalty. The Motion to Dismiss raised issues of (1) due process, (2) collateral estoppel and (3) the acquittal of the principal, as the basis for dismissal. The Motion regarding the Death Penalty raised solely statutory issues.
Three issues are raised on this appeal: (1) whether the Motion to Dismiss was improperly denied, as the Commonwealth is collaterally estopped from prosecuting appellant on the charge, (2) whether the trial court improperly denied the Motion to Bar Imposition of the Death Penalty, and (3) whether these orders are appealable.
[ 335 Pa. Super. Page 512]
The Commonwealth argues, inter alia, that the orders appealed should be quashed as interlocutory. Ordinarily, all pre-trial orders are considered interlocutory and not appealable. Commonwealth v. Bennett, 236 Pa. Super. 509, 345 A.2d 754 (1975). However, an order denying a pre-trial motion to dismiss on the grounds of double jeopardy/collateral estoppel is a final, appealable order. Commonwealth v. Winter, 324 Pa. Super. 258, 471 A.2d 827 (1984). The Commonwealth argues that appellant's estoppel argument does not encompass a "true" double jeopardy claim. However, because there exist situations where collateral estoppel may be properly raised in an appeal from the denial of a pre-trial motion to dismiss indictment, we believe it prudent to address the merits of appellant's collateral estoppel argument.
The facts in the instant case are almost identical to those found in Commonwealth v. Winter, 324 Pa. Super. 255, 471 A.2d 826 (1983). The defendant in Winter appealed from an order denying his motion to quash the information on collateral estoppel grounds. He argued that because a co-defendant was acquitted in a separate trial based on the jury's rejection of the testimony of an accomplice and because the Commonwealth's case in defendant's ...