Appeal from the PCHA of June 18, 1985 in the Court of Common Pleas of Allegheny county, Criminal Division, No. CC 7407117A
Kenneth J. Benson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Harold C. Scott, Pittsburgh, for appellee.
Wickersham, Watkins and Cercone, JJ.
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This is an appeal by the Commonwealth from the lower court's grant of appellee's, Harold Scott, Post Conviction Hearing Act Petition*fn1 reversing judgment of sentence and ordering appellee discharged.
The Commonwealth urges us to review the following issues: whether appellee's retrial and conviction of voluntary manslaughter violated the prohibition against double jeopardy; and whether appellee waived his right to assert the claim of double jeopardy.
The facts, stipulated to by the parties, are as follows:
In 1975 appellee was convicted, by a jury, of first degree murder and violation of the Uniform Firearms Act and sentenced to life imprisonment. Upon appeal to the Supreme Court, appellee's conviction was reversed on grounds that the lower court erred in refusing to allow the defense to present evidence that would negate the specific intent needed for conviction of first degree murder. In January, 1979 appellee's second trial commenced wherein the jury found him guilty of third degree murder and the firearms violation. On the verdict slip returned by the jury appellee was found not guilty of first degree murder, voluntary manslaughter or involuntary manslaughter, crimes for which evidence was presented at trial and the jury charged. After denial of his post trial motions appellee was sentenced to ten to twenty years imprisonment. Appellee again appealed to the Supreme Court and for the second time his conviction was overturned this time on a finding that appellee was denied a fair trial when the lower court ruled that a defense witness could be cross-examined about defendant's
[ 353 Pa. Super. Page 332]
two prior arrests neither of which led to a conviction. In 1982 appellee was tried a third time by the court sitting without a jury. At this non-jury trial he was adjudged guilty of voluntary manslaughter and the firearms violation. Defense counsel, by oral motion, waived appellee's right to file post verdict motions and appellee was sentenced to six to twelve years incarceration. He was released from custody shortly thereafter for credit of time served following his first conviction. On October 5, 1985 appellee filed a PCHA petition asserting a claim of double jeopardy and seeking a discharge. Appellee contended that he was acquitted of voluntary manslaughter when at his second trial the jury returned a verdict of "not guilty" of voluntary manslaughter. Thus, he argues, his conviction of voluntary manslaughter after his third trial violated principles of double jeopardy. Without conducting an evidentiary hearing the lower court granted appellee's petition entering an order vacating the judgment of sentence and discharging appellee. In its opinion in support of the order the lower court stated that the holding of Commonwealth v. Beck, 502 Pa. 78, 464 A.2d 316 (1983) is directly on point and controls appellee's claim that his third conviction on the charge of voluntary manslaughter violates his constitutional guarantee against being placed twice in jeopardy since he was found not guilty of this charge by a jury in his second trial.
In Beck, supra the appellant was tried on the charges of murder, manslaughter and conspiracy. Following 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 ...