COMMONWEALTH v. JONES, 453 Pa. 8 (1973)

306 A.2d 900

Commonwealth, Appellant, v. Jones.

Supreme Court of Pennsylvania.Argued April 30, 1973
Decided July 2, 1973

Appeals — Parties — Commonwealth — Criminal cases — Order granting new trial — Ruling based on admixture of law and fact.

In this case, in which it appeared that the Commonwealth appealed from an order granting a new trial to defendant, who had been convicted by a jury of murder in the first degree and other

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related crimes; it was Held that the court’s ruling was based on an admixture of law and fact, and, in the circumstances, the Commonwealth was without any right of appeal.

Mr. Justice MANDERINO filed a dissenting opinion.

Before JONES, C. J., EAGEN, O’BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

Appeal, No. 135, Jan. T., 1973, from order of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1970, Nos. 752 and 753, in case of Commonwealth of Pennsylvania v. James Jones. Appeal dismissed.

Indictment charging defendant with murder, possession of a firearm and conspiracy. Before REED, J.

Verdict of guilty of murder in first degree, and conspiracy. Defendant’s motion for new trial granted. Commonwealth appealed.

Clifford E. Haines, Assistant District Attorney, with hi Arthur R. Makadon, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Louis Lipschitz, with him Robert L. Franklin, for appellee.

OPINION PER CURIAM, July 2, 1973:

Herein, the Commonwealth appeals from an order below granting a new trial to James Jones, who had been convicted by a jury of murder in the first degree and other related crimes.

After a careful consideration of the entire record and the reasons assigned by the court for granting a new trial, it is clear to us that the court’s ruling was based on an admixture of law and fact. Under the circumstances, the Commonwealth is without any right

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of appeal. Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328
(1961), and Commonwealth v. Zeger, 193 Pa. Super. 498, 165 A.2d 683 (1960).

Appeal dismissed.

DISSENTING OPINION BY MR. JUSTICE MANDERINO:

I would affirm the grant of a new trial because there was no abuse of discretion by the trial court. I am unable to find any reason for depriving the Commonwealth of the right to appeal in all cases after the grant of a new trial following a conviction. Even when the matter is considered factual this Court can review in order to determine whether the trial court’s decision was within its proper discretionary authority.