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filed: March 29, 1985.


No. 26 W.D. Appeal Dkt. 1984 Appeal from the Order of the Superior Court dated August 19, 1983, entered at No. 1129 Pittsburgh, 1980, quashing the Commonwealth's Appeal from the Order of the Court of Common Pleas of Beaver County, Criminal Division, dated October 24, 1980, entered at No. 433 of 1980. Pa. Super. , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Nix

[ 507 Pa. Page 348]


We are here called upon to consider the broad question as to the applicability of the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment,*fn1 upon a trial court order granting a defendant's motion to terminate the trial in his favor before verdict. Specifically, the issue raised is whether our procedure which permits a trial court's order sustaining a demurrer to the Commonwealth's evidence to be reversed upon appeal, allows a new trial where the order was erroneously entered. For the reasons that follow we are satisfied that our procedure does not offend double jeopardy.


This appeal concerns two consolidated cases, Commonwealth v. Smalis, 331 Pa. Super. 307, 480 A.2d 1046 (1984), and Commonwealth v. Zoller, 318 Pa. Super. 402, 465 A.2d 16 (1983), both of which ended when the trial judge, sitting in a non-jury trial, granted defendants' demurrers to the prosecution's case. In Smalis defendants were charged with two counts of murder by arson. After the prosecution presented its evidence, the trial court found as a matter of law that there was insufficient evidence to link the defendants to the setting of the fire and sustained defense demurrers. The Commonwealth appealed. A panel of the Superior

[ 507 Pa. Page 349]

Court analogized the demurrer to an acquittal, and quashed the appeal on double jeopardy grounds. On reargument, en banc, the Superior Court affirmed the panel's decision.

Similarly, in Commonwealth v. Zoller, supra, the trial court determined that the evidence did not establish the element of general criminal intent and sustained defense demurrers to charges of aggravated assault, simple assault, recklessly endangering another person and criminal conspiracy. On appeal, the Superior Court found that the trial court erred when it sustained the motions for demurrer, but concluded that it was unable to grant the Commonwealth any relief in light of its earlier ruling in Commonwealth v. Smalis, supra.


Double jeopardy has been recognized as having three separate and distinct objectives: the protection of the integrity of a final judgment, the prohibition against multiple prosecutions even where no final determination of guilt has been made and the proscription against multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The question of multiple punishments for the same offense is not implicated in the instant appeals and therefore need not require our attention. We are called upon to examine the first two objectives to determine whether they are in any way offended by a redetermination of the trial court's decisions to grant the motion for demurrer.


The notion of the sanctity of the finality of a judgment in a criminal case developed from the common-law pleas of autrefois acquit, autrefois convict, and pardon which required a final judgment of guilt or innocence by the finder of fact. The most frequent articulation of this theory has been ". . . that the State with all of its resources and power should not be allowed to make repeated attempts to convict

[ 507 Pa. Page 350]

    an individual for an alleged offense . . . ." United States v. Scott, 437 U.S. 82, 86, 98 S.Ct. 2187, 2191, 57 L.Ed.2d 65 (1978), quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). Under this approach, the protection of the rule applies only after a defendant has been convicted or acquitted -- after the complete disposition of the action against him. Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 2159, 57 L.Ed.2d 24 (1978). However, this concept has not been interpreted as an absolute foreclosure of review of a judgment of the trial court in its disposition of criminal cases. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Thus we must examine the federal precedent to ascertain those factors which determine when the trial judgment is to be given the cloak of finality precluding further review.

The key question in the examination of this aspect of the double jeopardy protection is what is considered a final determination of guilt or innocence for this purpose. Interestingly, the concept of finality was never interpreted as precluding review of the entry of judgment in a criminal case by way of appeal. Rather, the focus was upon the second prosecution which was deemed offensive.

In the course of the debates over the Bill of Rights, there was no suggestion that the Double Jeopardy Clause imposed any general ban on appeals by the prosecution . . . . Nor does the common-law background of the Clause suggest an implied prohibition against state appeals. Although in the late 18th century the King was permitted to sue out a writ of error in a criminal case . . . ., the principles of autrefois acquit and autrefois convict imposed no apparent restrictions on this right. It was only when the defendant was indicted for a second time after either a conviction or an acquittal that he could seek the protection ...

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