*1 as those guage paragraphs para- the first and second mentioned one individual each—each graphs only paragraph was specific to a individual. monetary legacy specific
The testator states his “merely observes the majority siblings desire leave the residue to his named ‘and to the ” I survivor or survivors of them.’ with this observa- agree tion, but to the I would affirm the contrary majority, Orphans’ expression Court because of this stated” “merely intent, and would affirm the distribution of the estate accordance with his intent.
EAGEN, J.,C. in this joins dissenting opinion. Pennsylvania, Appellant,
COMMONWEALTH of WIMBERLY. Christine Supreme Court of Pennsylvania.
Argued April 1979.
Decided Oct. 1979.
Reargument Denied March 1980. *2 D. Was- Goldblatt, Atty., Nancy Dist. Deputy H. Steven ser, for Philadelphia, appellant. for Abrams, appellee. Philadelphia, B.
Ronald ROBERTS, NIX, O’BRIEN, J., and EAGEN, Before C. LARSEN, JJ. MANDERINO and OF THE COURT OPINION O’BRIEN, Justice. from an order results appeal
This the Commonwealth Philadelphia granting in the of Common Pleas Court Chris- against filed charges to on all demurrer the evidence the appellee. tine Wimberly, 16, 1977, and was on September was arrested
Appellee pos- and murder,1 manslaughter charged involuntary with filed a motion to Appellee of crime. sessing instruments statement, written plus a suppress certain evidence physical trial com- nonjury but the motion was denied. Appellee’s menced on 1978. At the conclusion January demurrers case, the court sustained followed. charges. appeal This her We for purposes note initially *3 facts which the Commonwealth’s appellee admitted all the de reasonably and all inferences prove evidence tended to 467 Pa. Long, Commonwealth ducible from those facts. No. (1976); A.2d Act of June P.L. In a 357, 1,19 proper on demurrer the ruling 481.2 P.S. § § is whether the Common test to be trial court applied by the reasonable is inferences therefrom wealth’s evidence and the of that finding sufficient to trier fact the support a accused is a reasonable doubt. Common guilty beyond Duncan, (1977). wealth v. Pa. court, however, feel constrained to The trial did not itself Rather, test. the court made the following the apply proper findings: Wimberly
“The demonstrated that Ms. testimony clearly on or altercation the provoke did not continue the [earlier reason- of the the she acted day shooting]. contrary, On to end or the with her ex-hus- ably avoid confrontation band. His was his unilat- refusal to cease the harassment eral determination. It is clear that the defendant equally trial, 1. Prior to the certified the homicide rose no Commonwealth higher degree. than murder of the third now, 2. See 42 Pa.C.S.A. 1722. §
could reasonably believe she was in immediate danger death or serious harm. bodily The defendant knew the decedent was mentally unbalanced. She was also aware of past instances when the decedent became physically violent, and that on those episodes the violence was direct- ed against the defendant. Ms. did Wimberly not initiate the confrontations that led to this incident. Earlier that day she had summoned the police order to escape the Moreover, decedent. the defendant was under no duty to retreat in her own home since the decedent was not a member household, of that and had intruded without invitation.”
Moreover, the trial court held: Court,
“This finder, as fact as rejects not credible being or of belief worthy that portion which testimony contradicted the statement of the defendant.”
It seen, then, be may the trial court plainly misapprehended its role at the demurrer stage. Passing upon the of Commonwealth credibility witnesses at that stage was Parrish, error. Commonwealth v. 250 Pa.Super. 176,378 A.2d (1977). We do not condone that practice case, the instant nor do anticipate we will practice be indulged in in future cases.
Nevertheless, we are
with
presented
problem
what effect should be
to the
determining precisely
given
order of the trial court.
It is well settled that an order
entered,
granting
properly
purely
question
is
of law and is
the Commonwealth.
appealable by
Long,
*4
380,
supra; Commonwealth v.
310 Pa.
It that a determination upon is no less review that a bars erroneously granted demurrer was not retrial. As Mr. Holmes noted: Justice
“We do not that it would be doubted that a suppose judgment upon a demurrer to the merits would be a bar to
173 v. words.” United States the same a second indictment 68, 69, 161 85, 61 L.Ed. 87, 37 S.Ct. Oppenheimer, 242 U.S. (1916). of dispute judgment that utterly beyond
It is in addition
is not
the Commonwealth.
acquittal
appealable
so as
of
to
judgment
acquittal
was not a
The instant order
neither,
the
review,
be seen from
may
but
as
foreclose
of a
traditional,
granting
above,
appealable,
it
was
the
Court noted
Supreme
the
States
demurrer.
United
Recently
of
ruling
judge,
the
when ‘the
only
“a defendant
is acquitted
the
a resolution
label, actually represents
[in
whatever
its
or
not,
or
some
correct
of
defendant’s
favor],
”
v.
United States
charged.’
the offense
factual elements of
2187,
(1978),
The trial
in the instant
court
entered
actually
of a
granting
its action as the
ing
lower
“If the order
the
a de facto
judgment
acquittal.
then the Commonwealth
acquittal,
court be considered an
Arnold,
v.
Commonwealth
has no
right
appeal.”
v.
see Commonwealth
(1969);
A.2d 885
Pa.Super.
Commonwealth
Rios,
(1972);
Appeal ROBERTS, J., a concurring opinion. files ROBERTS, Justice, concurring.
I should be appeal agree that the Commonwealth’s The majority correctly and quashed appellee discharged. appeal precludes of the trial court factfinding holds *5 174
by Commonwealth. To permit review here would plain- ly “expose the defendant to the risk aof second trial after the finder of had fact ruled in favor in the first.” [her] United Wilson, States v. 332, 420 1013, U.S. S.Ct. L.Ed.2d 232 (1975), (explaining United States Ball, v. U.S. S.Ct. L.Ed. 300 (1896).
However, I with the disagree majority’s observation that the trial court in this case nonjury by erred factual making findings in the course of granting appellee’s demurrer. Rule 1102(a) of the Pennsylvania Rules of Criminal Procedure provides for such fact-finding a trial. nonjury
“When a trial, defendant waives a the trial jury judge shall determine all questions law and fact and render verdict which shall have the same force and effect as verdict of a jury.”
Therefore, the trial court resolved properly questions fact raised evidence. Pennsylvania
COMMONWEALTH of GEARY, Appellant. Clinton Supreme Pennsylvania. Court of
Argued Oct. 1979.
Decided Feb. 1980. March 1980. Rehearing Denied