Appeal from the Order of the Court of Common Pleas, Lawrence County, Criminal Division, at Nos. 778, 778A-D of 1984.
Dennis I. Turner, Pittsburgh, for appellant.
Brosky, Tamilia and Kelly, JJ. Kelly, J., concurs in the result.
[ 373 Pa. Super. Page 271]
This is an interlocutory appeal from an order denying appellant's motion to dismiss for violation of the double jeopardy clause. Appellant has previously been tried twice for a number of charges. Both trials ended in a mistrial after a finding that the jury had become hopelessly deadlocked during deliberation.
Appellant asks us to determine if the double jeopardy clause prohibits the Commonwealth from trying him a third time after his first two trials resulted in hung juries. We are compelled to find that it does not, and affirm the order appealed from.
It has been stated recently by our Supreme Court that the double jeopardy clause has been recognized as having three separate and distinct goals: 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. Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985), rev'd 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). The present case would appear to involve the prohibition against multiple prosecutions
[ 373 Pa. Super. Page 272]
even where there has been no final determination of guilt. Perhaps not coincidentally, this goal has been a prevalent one of the double jeopardy clause dating back to its origin in the common law of England. Our Supreme Court noted in Zoller, 490 A.2d at 397, [i]nterestingly, 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 of the common-law pleas. The development of the Double Jeopardy Clause from its common-law origins thus suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial. quoting United States v. Wilson, 420 U.S. 332, 342, 95 S.Ct. 1013, 1021, [43 L.Ed.2d 232] (1975).
Further, along these lines, the Supreme Court noted that the "central design ...