Commonwealth v. Bronson

393 A.2d 453, 482 Pa. 207, 1978 Pa. LEXIS 1086

Opinions

OPINION OF THE COURT

EAGEN, Chief Justice.

This case involves an appeal from an order of the Court of Common Pleas of Philadelphia denying a motion to dismiss and/or quash criminal charges on the basis of double jeopardy-

The controversy arises from the following facts:

Purcell Bronson was arrested on March 12, 1977, and informations were returned as of March Term 1977, for murder, robbery, burglary, conspiracy, possession of instrument of crime generally and concealed weapon specifically, and prohibited offensive weapon. On May 18, 1977, a motion to suppress physical evidence was denied, and a motion to suppress statements was granted in part and denied in part. A motion to suppress identification testimony was reserved until the time of trial.

The jury selection process commenced on July 5,1977. On that date, Bronson moved for a continuance based on discovery of a potential alibi witness. The motion was denied when it became apparent that Bronson had knowledge of this witness prior to the date the case was listed for trial. In addition, Bronson requested that court-appointed counsel withdraw because he had attempted to obtain a pretrial plea bargain. This motion was also denied when a document authorizing counsel’s action and signed by Bronson was produced in court and made part of the record. Bronson then refused to participate further in the proceedings.

On July 6,1977, Bronson’s counsel requested a continuance to obtain a psychiatric evaluation of his client. Although Bronson had not previously claimed to have any mental health problems, he had now submitted to his counsel a pro se memorandum of law in support of such a motion seeking a mental examination and advising he had informed counsel that he was not competent to stand trial. The court denied the motion, and proceeded to take testimony on the motion to suppress identification.

On July 13, 1977, during the jury selection process, Bronson requested medical attention, through counsel, for physical illness. Seven jurors had been selected by that time. Court was recessed so that Bronson could be examined by a physician, but the examination revealed no physical problem. Because of Bronson’s behavior, the court ordered a psychiatric evaluation be made forthwith by the Psychiatric Division of the Probation Department.

The following day, the trial judge noted on the record that an examining psychiatrist had tentatively diagnosed Bronson as psychotic and incompetent to stand trial and that a thirty-day hospitalization under the Mental Health Procedures Act of 1976, Act of July 9, 1976, P.L. 817, No. 143, § 402(b), 50 P.S. § 7402(b) (Supp.1978-79), was recommended. The court followed this recommendation.

Because of this development, the seven jurors who had been chosen were dismissed, and, by agreement, the case was returned to the calendar room for the purpose of scheduling a competency hearing. All counsel agreed for the record that jeopardy had not attached. The competency hearing commenced on July 21, 1977. On July 22, the Commonwealth’s motion for an extension, pursuant to Pa.R. Crim.P. 1100 until November 17, 1977, was granted. Furthermore, Bronson’s counsel withdrew, and new counsel was appointed to represent him. On September 27, Bronson was declared competent to stand trial. On October 7, Bronson filed a motion to dismiss and/or quash the charges on the ground of double jeopardy. The motion was denied, and from that order this appeal was filed.

Footnotes

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* The order of the trial court will be affirmed.

Bronson’s claim of double jeopardy must fail if for no other reason than jeopardy never attached in the Commonwealth’s initial attempt to bring him to trial. It is well-settled that in order for jeopardy to attach, the jury must be empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); Commonwealth v. Bolden, supra, 472 Pa. at 625, 373 A.2d at 101; Commonwealth v. Stewart, 456 Pa. 447, 450, 317 A.2d 616, 618, cert. denied, 417 U.S. 949, 94 S.Ct. 3078, 41 L.Ed.2d 670 (1974); Commonwealth v. Curry, 287 Pa. 553, 557, 135 A. (1926); Alexander v. Commonwealth, 105 Pa. 1, 9 (1884). Since only seven jurors were chosen before Bronson’s commitment and none were sworn, the double jeopardy claim presented in this case is totally without merit.

Order affirmed.

NIX, J., filed a dissenting opinion in which O’BRIEN, J., joined.

The Commonwealth has filed a motion to dismiss the appeal as being from an interlocutory order. The motion is herewith denied. Cf. Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). However, in order to expedite disposition of the criminal charges, appeals of this character will be advanced for hearing upon request.