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COMMONWEALTH PENNSYLVANIA v. DESPINA SMALIS (06/02/88)

filed: June 2, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DESPINA SMALIS, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. ERNEST SMALIS, APPELLANT



Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, Nos. CC 8000930, 8001208 and 8001209. Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County, Nos. CC 8000931 and 8001211.

COUNSEL

Norma Chase, Pittsburgh, for appellant (at 71 and 1546).

Thomas A. Livingston, Pittsburgh, for appellant (at 72 and 1547).

Rowley, Del Sole and Montgomery, JJ.

Author: Per Curiam

[ 375 Pa. Super. Page 604]

These appeals arise from the trial court's denial of appellants' motion to dismiss the charges against them on grounds of double jeopardy following argument. Finding appellants' claims to be meritless we affirm the orders of the trial court, and remand for further proceedings.

Appellants were charged with criminal homicide, recklessly endangering another person, causing a catastrophe and failing to prevent a catastrophe as the result of a fire which destroyed a building they owned on February 12, 1979. Appellant Despina Smalis was also charged with theft by deception. At the conclusion of the prosecution's case, the trial court sustained demurrers on the charges of murder, voluntary manslaughter and causing a catastrophe. Trial on the remaining charges of involuntary manslaughter, recklessly endangering another person, failing to prevent a catastrophe and theft by deception (this charge as to appellant Despina Smalis only) was continued to permit the Commonwealth to appeal the order sustaining the demurrers.

The Commonwealth appealed to this court which found that such an appeal was barred by double jeopardy. Commonwealth v. Smalis, 331 Pa. Super. 307, 480 A.2d 1046 (1984). The Commonwealth then appealed our disposition to the Pennsylvania Supreme Court, which reversed this court's order and remanded for our review on the merits of the trial court's order sustaining the demurrers. Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985). Appellants' petitions for writ of certiorari to the United States Supreme Court were granted, and that court found that the Commonwealth's appeal was barred by double jeopardy, reversing the Pennsylvania Supreme Court. Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). In accordance with the mandate of the United States Supreme Court, the Pennsylvania Supreme Court reinstated the order of this court quashing the Commonwealth's appeal. Commonwealth v. Smalis, 511 Pa. 229, 512 A.2d 634 (1986). Attempts to proceed to trial prompted

[ 375 Pa. Super. Page 605]

    appellants to file the aforementioned motion to dismiss the charges against them.

Nos. 71 and 1546 Pittsburgh 1987 Appeal of Despina Smalis

Appellant Despina Smalis raises the following two (2) claims for our review, which will be addressed seriatim:

I. Whether retrial or resumption of a non-jury trial after a protracted "recess", during which the Commonwealth pursued an appeal from an order ultimately and not altogether unpredictably held to be an unappealable acquittal, subjects appellant to double jeopardy with respect to the charges that were not involved in the previously appealed order?

II. Whether the resumption of a non-jury trial some seven years after it was "recessed" for an impermissible appeal deprives appellant of ...


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