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COMMONWEALTH PENNSYLVANIA v. RICHARD A. KEMMERER (01/03/89)

filed: January 3, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
RICHARD A. KEMMERER, APPELLEE



Appeal from the Order entered February 24, 1988 in the Court of Common Pleas of Luzerne County, Criminal Division, at No. 2242 of 1986.

COUNSEL

Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Com., appellant.

Lewis J. Bott, Assistant Public Defender, Hazleton, for appellee.

Wieand, Del Sole and Hester, JJ. Wieand, J., files a dissenting opinion.

Author: Del Sole

[ 381 Pa. Super. Page 534]

The Commonwealth takes this appeal from a trial court order which dismissed charges of second and third degree murder as well as voluntary manslaughter against Appellee, Kemmerer. Bound by prior case law, we affirm the trial court's ruling.

After the beaten body of Robert S. Evans was discovered, Kemmerer was arrested and charged with criminal homicide, robbery and two counts of theft by unlawful taking or

[ 381 Pa. Super. Page 535]

    disposition. A jury trial was held and verdicts were returned which found Kemmerer guilty of robbery and two counts of theft by unlawful taking or disposition. The jury returned a not guilty verdict on charges of first degree murder and involuntary manslaughter; however, after deliberating for about 15 hours the jury was unable to reach a verdict on second degree murder, third degree murder and voluntary manslaughter. Pursuant to Kemmerer's petition, the trial court ruled that the charges on which the jury was unable to return a verdict had to be dismissed as mandated by Pa.R.Crim.P. 1120(d). That Rule provides:

If there are two or more counts in the information or indictment, the jury may report a verdict or verdicts with respect to those counts upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed. When the counts in the information or indictment upon which the jury cannot agree are not included offenses of the counts in the information or indictment upon which it has agreed, the defendant or defendants may be retried on those counts in the information or indictment.

The Supreme Court has interpreted Rule 1120(d) under nearly identical circumstances. In Commonwealth v. Roberts, 484 Pa. 500, 399 A.2d 404 (1979), the Appellee was found guilty by a jury of burglary and conspiracy. Verdicts of not guilty were returned on charges of murder in the first degree, murder in the third degree, voluntary manslaughter, and involuntary manslaughter. A mistrial was granted on the charge of murder in the second degree after it was reported that the jury was hopelessly deadlocked on that charge. The Commonwealth sought to retry the Appellee for second degree murder, but the Appellee's petition to dismiss the charge was granted and the indictment quashed. As in this case, the Commonwealth appealed.

[ 381 Pa. Super. Page 536]

The Supreme Court highlighted the following language of Rule 1120(d): "If the jury cannot agree with respect to all the counts in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed." It then held:

Therefore, Rule 1120(d), requires dismissal of the count charging murder in the second degree if murder in the second degree is a lesser and/or greater included offense of either murder in the first degree, murder in the third degree, voluntary manslaughter, or involuntary manslaughter. That it is is now beyond question . . . . The trial court thus correctly ordered the charge of murder in the second degree dismissed.

Id., 484 Pa. at 503, 399 A.2d at 405 (1979) (citations omitted.)

In the instant case the Commonwealth chooses to reject the holding of Roberts and instead sets forth it's "position that the applicable law is that enunciated by Justice Nix, now Chief Justice Nix in the dissenting opinion of Commonwealth v. Roberts." Appellant's Brief at 5. Referring to this strong dissent which was joined by Justice Larsen, the Commonwealth urges this Court to change the law of this Commonwealth. The Superior Court, however, is powerless to alter the decisional law of our Supreme Court. Commonwealth v. Butch, 257 Pa. Super. 242, 390 A.2d 803 (1978). We are bound ...


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