Com. v. Lee
Decision Date | 03 July 1980 |
Citation | 416 A.2d 503,490 Pa. 346 |
Parties | COMMONWEALTH of Pennsylvania v. James LEE, Appellant. |
Court | Pennsylvania Supreme Court |
Robert B. Lawler, Chief, Appeals Division, Asst. Dist. Atty., Lise Rapaport, Philadelphia, for appellee.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.
Appellant, James Lee, was convicted in a non-jury trial of murder of the third degree for the June 23, 1977 stabbing death of Silas Fowler. Post-verdict motions were denied and appellant was sentenced to a prison term of two to ten years. This appeal followed.
In this appeal, appellant raises one issue. He claims that his right against being twice placed in jeopardy was violated when he was forced to go to trial in the instant matter. The facts are as follows.
In November, 1977, appellant's first non-jury trial commenced. During the Commonwealth's case-in-chief, one William Crawford was called as a witness. As the appellant's version of the incident would have indicted that Crawford was criminally liable, appellant's trial counsel requested the court to advise Crawford of his Fifth Amendment privilege against self-incrimination. When the Commonwealth objected, an in camera hearing was held.
The Commonwealth advised the trial court that Crawford was a witness only. The trial court then raised the possibility that the Commonwealth could very well change its view should appellant be acquitted. The following exchange occurred:
The Court then granted appellant's motion for a mistrial and terminated the proceedings.
Prior to the instant trial, appellant filed a motion to dismiss the information on double jeopardy grounds. The Court denied the motion and informed appellant of his right to file an immediate appeal from the denial. No appeal, however, was taken and appellant proceeded to trial. Following the instant conviction, appellant again asserted the violation against double jeopardy in both post-verdict motions and this appeal.
In Commonwealth v. Bolden, 472 Pa. 602, 631-33, 373 A.2d 90, 104 (1977), a plurality of this Court stated:
The Commonwealth argues that appellant has waived this claim by failing to immediately appeal the order denying his motion to dismiss the information. We do not agree.
Unquestionably, appellant could have sought immediate appellate review of the question involved. For whatever reason, however, appellant proceeded to trial without first appealing the double jeopardy question. 1 We believe that a defendant may choose to proceed to trial and if convicted, still challenge the propriety of the pretrial motion to dismiss on double jeopardy grounds on appeal. We will thus reach the merits of appeal.
Appellant argues that his retrial should have been barred because the prosecutor in the aborted first trial engaged in either intentional or grossly negligent misconduct by referring to Crawford's having taken a polygraph examination. The test to be applied is whether the Commonwealth engaged in either intentional or bad faith "overreaching." Commonwealth v. Starks, --- Pa. ---, 416 A.2d 498 (J. 219 of 1980)....
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Pennsylvania Bulletin, Vol 52, No. 03. January 15, 2022
...to preclude the defendant from proceeding to trial without first appealing the double jeopardy question. See, e.g., Commonwealth v. Lee, [ 490 Pa. 346, 350, ] 416 A.2d 503, 504-05 1980) (‘‘Unquestionably, appellant could have sought im- mediate appellate review of the question involved. For......
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Pennsylvania Bulletin, Vol 52, No. 3. January 15, 2022
...to preclude the defendant from proceeding to trial without first appealing the double jeopardy question. See, e.g., Commonwealth v. Lee, [ 490 Pa. 346, 350, ] 416 A.2d 503, 504-05 1980) (‘‘Unquestionably, appellant could have sought im- mediate appellate review of the question involved. For......