Appeal from the Order Entered February 26, 1988 in the Court of Common Pleas of Philadelphia County, Juvenile Nos. 6824-87-10, 6496-87-09.
Karl Baker, Assistant Public Defender, Philadelphia, for appellant.
Alan Sacks, Assistant District Attorney, Philadelphia, for Com.
Cirillo, President Judge, and Beck and Kelly, JJ.
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This is an interlocutory appeal taken by Matthew Spause, a juvenile, following the denial of his motion to dismiss the prosecution of two juvenile delinquency petitions, involving rape of his four-year old niece and escape from a shelter in which he had been placed pending the proceedings on the
[ 381 Pa. Super. Page 168]
rape petition. Spause's motion to dismiss was based upon double jeopardy grounds.
On September 26, 1987, the Commonwealth filed a juvenile petition seeking adjudication for rape, involuntary deviate sexual intercourse, indecent assault, indecent exposure, simple assault, endangering the welfare of a child and intimidation of a witness ("rape petition"). Spause was placed in a shelter pending the proceedings in Juvenile Court. He, however, escaped from the shelter and on October 10, 1987, the Commonwealth filed a second petition charging Spause with the escape ("escape petition"). On November 4, 1987, the two petitions came before the Honorable Edward R. Summers and he found that the Commonwealth's witnesses with respect to the rape petition were incompetent to testify. Consequently there was no adjudication of the delinquency of Spause.
On November 16, 1988, the petitions again came before Judge Summers at which time the court found Spause to be 'dependent' and committed him to George Junior Republic, a residential juvenile institution. On December 7, 1988, the Commonwealth filed a petition to reconsider the dependency declaration wherein it averred that the court committed Spause to George Junior Republic as a dependent child without a dependency petition having been filed and without following the statutory requirements regarding dependency determination. Thereafter Spause filed a reply to this petition.
Apparently, at some point during these proceedings, the court expressed an interest in reopening the competency hearing on the rape petition and asked the parties involved to submit briefs on this issue. The Commonwealth and the public defender both filed memoranda in response to the court's request. On February 26, 1988, a hearing was held where the Commonwealth asked the court to rule on the competency issue and the petition to reconsider the dependency adjudication. The public defender, on the other hand, asked the court to dismiss prosecution of the petition on double jeopardy grounds. It appears from the hearing
[ 381 Pa. Super. Page 169]
transcript that the public defender was contending that a reopening of the competency hearing would violate Spause's right not to be placed twice in jeopardy. The Commonwealth stated that if the court decided to reopen the competency hearing that it would not argue the adjudication of dependency. During the hearing, Judge Summers stated that he was going to allow the reopening of the competency hearing under the conditions set forth in Commonwealth v. Ludwig, 366 Pa. Super. 361, 531 A.2d 459 (1987) app. granted, 518 Pa. 617, 541 A.2d 744 (1988). In so ruling, the court denied the public defender's motion to dismiss the prosecution on grounds of double ...