Commonwealth v. Beck

NIX, Justice,

dissenting.

The issue of appellant’s purported prior acquittal of voluntary manslaughter has been waived and thus should not be addressed by this Court. Further, that claim, on which the majority bases its order discharging appellant, is clearly without merit. I therefore dissent.

The majority characterizes appellant’s claim as a plea of autrefois acquit. Assuming the continued vitality of that common law plea in this Commonwealth, the issue thereby raised has not been preserved for appellate review. 1 At *84 common law autrefois acquit was considered a special plea in bar. See Commonwealth v. Hogan, 482 Pa. 333 , 393 A.2d 1133 (1978); 21 Am.Jur.2d Criminal Law §§ 449, 458; Black’s Law Dictionary 123 (rev. 5th ed. 1979); 4 W. Blackstone, Commentaries *335; M. Friedland, Double Jeopardy 89-115 1 (1969); Sigler, “A History of Double Jeopardy,” 7 Am.J. Legal Hist. 283 (1963); Note, 77 Harv.L.Rev. 1272 (1964); Comment, 45 J.Urban L. 405 (1967); see also United States v. Wilson, 420 U.S. 332 , 95 S.Ct. 1013 , 43 L.Ed.2d 232 (1975); Bartkus v. Illinois, 359 U.S. 121 , 79 S.Ct. 676 , 3 L.Ed.2d 684 (1959); cf. Commonwealth v. Lee, 490 Pa. 346, 351 , 416 A.2d 503, 505 (1980) (Nix, J., concurring); Commonwealth v. Peters, 473 Pa. 72, 88 , 373 A.2d 1055, 1063 (1977) (Nix, J., concurring); Commonwealth v. Bolden, 472 Pa. 602, 652 , 373 A.2d 90, 114 (1977) (Nix, J., dissenting); Commonwealth v. Morningstar, 82 Pa.Super. 425 (1923). A plea in bar must be entered prior to trial; if not so entered it is waived. Commonwealth v. Lee, supra, 490 Pa. at 351 , 416 A.2d at 505 (Nix, J., concurring); Commonwealth v. Peters, supra, 473 Pa. at 89 , 373 A.2d at 1063 (Nix, J., concurring); Commonwealth v. Bolden, supra 472 Pa. at 655-565 , 373 A.2d at 116 (Nix, J., dissenting); Commonwealth ex rel. Papy v. Maroney, 417 Pa. 368 , 207 A.2d 814 (1965); Commonwealth ex rel. Wallace v. Burke, 169 Pa. Super. 633 , 84 A.2d 254 (1951); Commonwealth v. Gibbs, 167 Pa.Super. 79 , 74 A.2d 750 (1950); Commonwealth v. Balles, 163 Pa.Super. 467 , 62 A.2d 91 (1948); 21 Am.Jur.2d Criminal Law § 461. Since appellant did not raise the issue of former acquittal until his second trial had been completed and a verdict returned, that claim clearly has been waived.

Under the view that the bar to reprosecution formerly afforded by a plea of autrefois acquit has been subsumed by double jeopardy protection, the result must be the same. It is well established in Pennsylvania that failure to raise a timely double jeopardy claim effects a waiver of that claim. See Commonwealth v. Gilman, 485 Pa. 145 , 401 A.2d 335 *85 (1979); Commonwealth v. Peters, supra; Commonwealth v. White, 264 Pa.Super. 495 , 400 A.2d 194 (1979); Commonwealth v. Rabik, 259 Pa.Super. 456 , 393 A.2d 916 (1978); Commonwealth v. Carelli, 291 Pa.Super. 502 , 436 A.2d 228 (1981); Commonwealth v. Fisher, 244 Pa.Super. 361 , 368 A.2d 762 (1976); Commonwealth v. Splain, 242 Pa.Super. 503 , 364 A.2d 384 (1976); Commonwealth v. Abruzzese, 231 Pa.Super. 157 , 331 A.2d 821 (1974); Commonwealth v. Rispo, 222 Pa.Super. 309 , 294 A.2d 792 (1972). Moreover, it has long been recognized in the federal courts that constitutional immunity against double jeopardy is a personal right which will be regarded as waived if not affirmatively pleaded at the time of trial. See United States v. Perez, 565 F.2d 1227 (2d Cir.1977); United States v. Young, 503 F.2d 1072 (3d Cir.1974); United States v. Scott, 150 U.S.App.D.C. 323 , 464 F.2d 832 (1972); United States v. Buonomo, 441 F.2d 922 (7th Cir.), cert. denied, 404 U.S. 845 , 92 S.Ct. 146 , 30 L.Ed.2d 81 (1971); Grogan v. United States, 394 F.2d 287 (5th Cir.1967), cert. denied 393 U.S. 830 , 89 S.Ct. 97 , 21 L.Ed.2d 100 (1968); Haddad v. United States, 349 F.2d 511 (9th Cir.), cert. denied, 382 U.S. 896 , 86 S.Ct. 193 , 15 L.Ed.2d 153 (1965); Ferina v. United States, 340 F.2d 837 (8th Cir.), cert. denied, 381 U.S. 902 , 85 S.Ct. 1446 , 14 L.Ed.2d 284 (1965); Kistner v. United States, 332 F.2d 978 (8th Cir.1964); Barker v. Ohio, 328 F.2d 582 (6th Cir.1964); Harris v. United States, 237 F.2d 274 (8th Cir.1956). Thus, under either analysis of the nature of appellant’s claim, it has not been preserved for our review.

In addition, even if appellant’s former acquittal claim had been preserved he would not be entitled to relief. The fact that the jury, having convicted appellant of third degree murder, returned an unnecessary additional verdict of not guilty of voluntary manslaughter does not render that latter verdict an acquittal. “The word itself has no talismanic qualities for purposes of the Double Jeopardy Clause.” Serfass v. United States, 420 U.S. 377, 392 , 95 S.Ct. 1055, 1064 , 43 L.Ed.2d 265, 276 (1975). In order to have the effect of a judgment of acquittal, the jury’s action must have repre *86 sented a resolution in appellant’s favor, correct or not, of some or all of the factual elements of the offenses charged. United States v. Scott, 431 U.S. 82, 98 S.Ct. 2187 , 57 L.Ed.2d 65 (1978); United States v. Martin Linen Supply Co., 430 U.S. 564 , 97 S.Ct. 1349 , 51 L.Ed.2d 642 (1977); Commonwealth v. Wimberly, 488 Pa. 169 , 411 A.2d 1193 (1979). Obviously it did not.

The first jury’s verdict of not guilty of voluntary manslaughter represents nothing more than a rejection of-voluntary manslaughter as an appropriate verdict in the instant case. That rejection was dictated by the jury’s finding of malice, which is necessarily implied from its verdict of third degree murder. The bar to retrial arises where the first jury finds that the Commonwealth case is insufficient to establish the elements of the charge question. The finding by the first jury in this matter was to the contrary. They found a malicious killing. Their rejection of the charge of voluntary manslaughter was not on the basis of a finding that the state had not proven that degree of culpability; to the contrary, it represented an expression by the jury that the evidence reflected an even higher degree of culpability. The mere use of the words “not guilty” does not give that judgment a quality that was obviously not intended by the body rendering it.

The verdict on the charge of voluntary manslaughter is mere surplusage born of the jury’s misunderstanding as to the proper procedure to be followed in announcing its decision; it represents neither a factual resolution nor a finding in appellant’s favor. Thus it cannot be said to have the effect of an acquittal, and was no bar to appellant’s reprosecution for voluntary manslaughter.

Appellant’s remaining claim of trial' error, not reached by the majority, is also without merit. Accordingly, I would affirm the judgment of sentence.

McDERMOTT, J., joins in this dissenting opinion.

HUTCHINSON, J., joins in Part I of this dissenting opinion.

. Reprosecution on the same charge following an acquittal is statutorily prescribed under section 109(1) of the Crimes Code of 1972, 18 Pa.C.S. § 109(1). The waiver doctrine is not affected by that enactment. The issue of former acquittal is to be raised by omnibus pretrial motion in accordance with Pa.RCrim.P. 306. See Commonwealth v. Rabik, 259 Pa.Super. 456 , 393 A.2d 916 (1978); Common *84 wealth v. Davis, 247 Pa.Super. 450 , 372 A.2d 912 (1977). Failure to so raise that issue constitutes a waiver thereof. Pa.R.Crim.P. 306(e).