author: ROWLEY, Judge:

text:
    502 A.2d 1345
    COMMONWEALTH of Pennsylvania v. Geoffrey ADAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1985.
    Filed Jan. 10, 1986.

      Melanie S. Rothey, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

Appellant, Geoffrey Adams, was charged with rape, involuntary deviate sexual intercourse, unlawful restraint, simple assault and corrupting the morals of a minor at Information No. 8410604A, and reckless endangerment of another person in a second Information at No. 8412545A. After the jury was empaneled at appellant’s first trial, the charges were dismissed on appellant’s motion. Upon reconsideration by the trial judge, the order of dismissal was rescinded and the charges were reinstated. Appellant’s subsequent motions to reverse the order reinstating the charges and/or to dismiss the charges were denied and the case was relisted for trial. On appeal from the Order denying these motions, appellant contends that reprosecution on the charges would violate his constitutional right not to be placed twice in jeopardy. Upon a careful review of the record herein, we find that the double jeopardy clause does not bar retrial of appellant and, accordingly, appellant’s motions were properly denied.

At Information No. 8410604A, filed November 29, 1984, appellant was charged with rape, involuntary deviate sexual intercourse, unlawful restraint, simple assault and corrupting the morals of a minor. These charges arose from appellant’s alleged sexual assault of a thirteen year-old girl on August 17, 1984. At Information No. 841254A, filed January 4, 1985, appellant was charged with recklessly endangering the life of a police officer. This charge resulted from appellant’s crash through a police roadblock on August 17, 1984, to avoid being arrested on the other offenses. The informations were consolidated for trial, which commenced on March 19, 1985. On that date, a jury was empaneled and sworn and both the assistant district attorney (district attorney) and appellant’s counsel delivered their opening statements. The trial judge then excused the jury, advising the parties and the jury that the trial would recommence promptly at 9:00 a.m. on the next day.

At 9:00 a.m. on March 20,1985, the clerk called the roll of the jury. The trial judge then directed the district attorney to call her first witness. The district attorney replied that the Commonwealth was not prepared to proceed because the “witnesses [had] not appeared yet for the Commonwealth.” (N.T., March 20,1985 at 2.) The trial judge asked the district attorney if she had another witness to call, to which she responded: “No, Your Honor. I’m sorry, I don’t.” (N.T., March 20, 1985 at 2.) The trial judge then instructed the parties and the jury that he would delay the trial for ten minutes.

After approximately fifteen minutes had passed, defense counsel requested a side bar conference. At side bar, defense counsel made an oral “Motion to Dismiss for failure to prosecute.” In response, the district attorney stated that the Commonwealth had every reason to believe that the witnesses would be present at 8:30 a.m., that attempts to call the witnesses at home had been unsuccessful, and that the Braddock Police had been sent to find the witnesses. At that point, the trial judge briefly recounted the morning’s events for the record. After indicating that it was 9:25 a.m. and there were still no Commonwealth witnesses present, the trial judge granted the motion for dismissal at side bar. Proceedings before the jury were resumed thereafter, and the jury was instructed as follows:

Members of the jury, with very great reluctance we have to tell you that we have granted a motion to dismiss the charges in this case because of the failure of the prosecution witnesses to appear____ But we do tell you that it is the responsibility of the lawyers in the case to see to it that the witnesses are here when the case is scheduled to proceed, and we can’t run the court system on a basis of “We will hear the case whenever you find it convenient to get here.” We have to have a time scheduled, just as you have to have one in running your home and people in business have to have a time schedule in running their businesses.
Now, the charges in this case are serious, and it’s with the greatest of regret that we have to dismiss the case on this basis, but we have no alternative, it seems to us, and we now excuse you from further attendance on this case with the thanks of the Court.

N.T., March 20, 1985, at 4-6. The following written Order was then entered on Information Numbers 8410604A and 8412545A:

And now, March 20, 1985, it appearing to the Court that the Commonwealth is unable to proceed, this case is hereby dismissed. Defendant remanded to custody of sheriff.

On March 21, 1985, the Commonwealth filed a Motion to Reconsider the Order of Court dated March 20, 1985. Following a brief in-chambers hearing on March 25, 1985, concerning the Commonwealth’s motion, the trial judge entered the following order:

And now, March 25, 1985, this case being in trial on March 20, 1985 with testimony about to begin, and the Commonwealth having stated its witnesses were not present and they could not proceed, and defendant having moved for dismissal and order of dismissal having been thereupon inadvertently entered, said order is now rescinded and a mistrial declared for manifest necessity, and in camera hearing with all counsel present having been had this morning and transcript of the Court proceedings having been reviewed, and the Commonwealth having now represented that its witnesses are available to testify, it is ordered that the case be listed again for trial.

On March 26, 1985, appellant filed a Motion to Reconsider the Order of Court dated March 25, 1985, and an Answer to the Commonwealth’s Motion to Reconsider the Order of Court dated March 20, 1985. On March 28, 1985, appellant filed a Supplemental Answer to the Commonwealth’s Motion to Reconsider the Order of Court dated March 20, 1985, a Supplemental Motion' to Reconsider the Order dated March 25, 1985, and a Motion to Dismiss under double jeopardy. On March 29, 1985, appellant filed a Motion to Dismiss the charges pursuant to Pa.R.Crim.P. 1117. A hearing regarding all these motions was held on March 28 and March 29, 1985, before another judge assigned to the case (post-trial judge). On April 3,1985, the post-trial judge entered an Order denying appellant’s motion to reconsider and vacate the Order dated March 25, 1985, and expressly confirming the reinstatement of charges against appellant. Appellant’s motion to dismiss on double jeopardy grounds and his, motion to dismiss pursuant to Pa.Crim.P. 1117 were also denied and it was directed that the matter proceed to trial forthwith. Appellant filed this timely appeal from the Order entered on April 3, 1985. See Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977) (denial of defendant’s pre-trial motion to dismiss an indictment on double jeopardy grounds is immediately appealable).

On appeal, appellant’s basic contention is that retrial on the charges set forth in the informations is barred on double jeopardy grounds. Specifically, appellant argues that: 1) the original order dismissing the charges for “failure to prosecute” was the functional equivalent of an acquittal and a second trial on those same charges would offend double jeopardy; 2) since the original dismissal of the charges was an adjudication that appellant was not guilty on the merits, the trial judge had no authority to reconsider and reverse the order acquitting appellant; and 3) there was no “manifest necessity” for the trial court’s declaration of a mistrial sua sponte on either March 20 or March 25, 1985, and accordingly, double jeopardy prohibits retrial. Appellant thus asserts that the post-trial judge erred in denying both his motion to rescind the Order reinstating the charges, and his motion to dismiss the charges. Our review of the record convinces us that appellant’s contentions are without merit. We will address each argument seriatim.

I.

Appellant’s first contention is that the trial court’s dismissal of the charges against him on defense counsel’s motion to dismiss for “failure to prosecute” was, in actuality, a judgment of acquittal. Appellant thus claims that the double jeopardy provisions prohibit reprosecution, even if the dismissal of the charges was erroneous. In addressing appellant’s claim, we begin with a discussion of the application of double jeopardy principles to situations in which the defendant successfully obtains a mid-trial termination of the proceedings before a final determination of his guilt or innocence has been made.

It is clear that a judgment of acquittal, whether based upon a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, however mistaken, is not reviewable and such a determination terminates the prosecution when a second trial would be necessitated by reconsideration and reversal. United States v. Scott, 437 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). See generally United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). However, if a trial is terminated at the request of the defendant without any submission to either judge or jury as to defendant’s guilt or innocence, the particular circumstances of the case determine whether a second trial is barred by double jeopardy.

When the trial court declares a mistrial in response to defendant’s own motion, double jeopardy principles do not prevent retrial. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Commonwealth v. Zol ler, 507 Pa. 344, 490 A.2d 394 (1985). As the United States Supreme Court explained in United States v. Scott, supra:

Where, ... a defendant successfully seeks to avoid his trial prior to its conclusion by a motion for mistrial, the Double Jeopardy Clause is not offended by a second prosecution. '[A] motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by a prosecutorial or judicial error.’ United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (opinion of Harlan, J.) Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.

437 U.S. at 94, 98 S.Ct. at 2195, 57 L.Ed.2d at 76. A subsequent prosecution will be barred on double jeopardy grounds only if the Commonwealth’s actions were intended to provoke a mistrial request by the defendant. Oregon v. Kennedy, supra; United States v. Scott, supra; Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 52 L.Ed.2d 80 (1977); Commonwealth v. Riffert, 322 Pa.Super. 230, 469 A.2d 267 (1983).

If the trial court terminated defendant’s trial in response to defendant’s motion for dismissal of the information or indictment, rather than a motion for mistrial, whether reprosecution is barred on double jeopardy grounds depends upon the nature of the trial court's ruling. If a defendant deliberately chooses to seek dismissal of the proceedings on a basis unrelated to factual guilt or innocence of the offense charged, the trial court’s mid-trial dismissal on defendant’s motion does not prevent the government from appealing and seeking retrial. United States v. Scott, supra (double jeopardy does not bar retrial of defendant following termination of first trial on defendant’s mid-trial motion for dismissal on grounds of preindictment delay); Commonwealth v. Zoller, supra (trial court’s order sustaining demurrer to Commonwealth’s evidence may be reversed on appeal and new trial granted without offending double jeopardy). Double jeopardy prohibits re-prosecution only if the defense-initiated mid-trial dismissal is the “functional equivalent of an acquittal.” Commonwealth v. Zoller, 507 Pa. at 356, 490 A.2d at 400, citing Whitebread, Criminal Procedure § 2403 (1980). See United States v. Scott, supra. An acquittal occurs only when “the ruling of the trial judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.” United States v. Scott, 437 U.S. at 97, 98 S.Ct. at 2197, 57 L.Ed.2d at 78, citing United States v. Martin Linen Supply Co., 430 U.S. at 571, 97 S.Ct. at 1355, 51 L.Ed.2d at 651-52. Thus, the critical inquiry for double jeopardy purposes is whether the dismissal of the charges by the trial judge, at defendant’s request, constitutes an acquittal, or a dismissal “not on the merits.” Commonwealth v. Zoller, 507 Pa. at 356, 490 A.2d at 400.

In the instant case, appellant claims that the trial court dismissed the charges against him upon a finding that appellant was not guilty of the offenses charged. Our review of the circumstances surrounding entry of the March 20, 1985 Order dismissing the charges, in light of the principles discussed above, convinces us that the Order was entered on grounds unrelated to defendant’s actual guilt or innocence. Accordingly, reinstatement of the charges and prosecution thereon is not precluded on double jeopardy grounds.

After the jury was empaneled on the second day of trial in this case, the Commonwealth was directed to call its first witness. The district attorney indicated that she was unable to proceed due to the absence of witnesses for the Commonwealth. Following a fifteen to twenty minute delay, defense counsel requested a side bar conference at which he stated: “Your Honor, we would at this time make a motion to dismiss for failure to prosecute.” (N.T., March 20, 1985 at 3.) The trial judge granted the motion to dismiss the charges at 9:25 a.m. “because of the failure of the prosecution witnesses to appear.” (N.T., March 20, 1985 at 5).

We note that a motion for dismissal of the charges, made after the jury has been empaneled and opening statements have been made, is not a proper motion at that stage of the proceedings. Commonwealth v. Africa, 281 Pa.Super. 419, 428, 422 A.2d 539, 543 (1980). A motion for dismissal may only be made prior to the commencement of trial. Commonwealth v. Africa, supra; Pa.R.Crim.P. 315. Appellant concedes that the motion to dismiss was improper, but argues that defense counsel’s actual intention was to make a “Motion for Judgment of Acquittal.” Appellant claims that the trial court’s dismissal of the charges was a “factual determination based on the testimony which was in evidence,” and thus, it was equivalent to an acquittal. (Appellant’s brief at 14.) We cannot agree with appellant’s characterization of either defense counsel’s motion or the trial court’s ruling thereon.

A motion for judgment of acquittal is not properly made during the course of the trial, but rather may only be made at the close of all the evidence presented. Pa.R. Crim.P. 1124(a)(2). Thus, defense counsel’s motion for dismissal for failure to prosecute, made before any evidence was submitted and before either party rested, did not fall into the category of a motion for judgment of acquittal. Indeed, in reviewing the record herein, we find that defense counsel did not clarify his request for dismissal in any way and, thus, the trial judge was not informed that he was “actually” requesting a judgment of acquittal, even if that was counsel’s intention.

The trial judge’s statements at the time the order was entered reveal that he did not determine that appellant was innocent of the charges when he granted the motion for dismissal; rather he determined only that the Commonwealth’s witnesses had failed to appear in a timely manner. The trial judge did not resolve any element of the offenses appellant was charged with committing, nor did he conclude that the Commonwealth’s evidence was insufficient to sustain appellant’s conviction. See United States v. Scott, supra; Commonwealth v. Zoller, supra. In fact, in advising the jury of his reasons for dismissing the case, the trial judge stated: “... with very great reluctance we have to tell you that we have granted a motion to dismiss the charges in this case because of the failure of the prosecution witnesses to appear____ Now, the charges in this case are serious, and its with the greatest regret that we have to dismiss the case on this basis.” (N.T., March 20, 1985, at 4-5, emphasis added.) Thus, it is clear the trial judge did not find that appellant was innocent of the offenses charged based upon the Commonwealth’s inability to produce credible evidence. Instead, the trial judge dismissed the charges because he had been informed (incorrectly it was later determined) by the assistant district attorney that she had no witnesses available with whom to proceed. The court’s ruling under these circumstances cannot be construed as an adjudication of appellant’s innocence on the merits.

The situation in this case is similar to that in United States v. Scott, supra. Just as appellant in the case before us moved to dismiss the information after the jury had been sworn because of delay in the Commonwealth’s witnesses appearing to testify, so too the defendant in Scott moved, after the commencement of the trial, to dismiss two counts of a three-count indictment on the ground that his defense had been prejudiced by preindictment delay. After hearing all the evidence, the court granted defendant’s motion. Aside from indicating that defendant had presented sufficient proof of prejudice as to Count II, the trial judge did not explain his reasons for the dismissal. On appeal, the Supreme Court held that further prosecution of appellant on the first two counts was not barred by the double jeopardy clause since the defendant had sought dismissal on grounds “unrelated to factual guilt or innocence.” United States v. Scott, 437 U.S. at 99-100, 98 S.Ct. at 2198, 57 L.Ed.2d at 79-80. See also, Lee v. United States, supra, (mid-trial dismissal of an indictment, initiated by defendant, did not preclude second prosecution since the circumstances presented were “functionally indistinguishable from a declaration of mistrial”).

In the case at bar, the trial judge did not make a factual determination of appellant’s guilt or innocence of the crimes which he was charged with committing; rather, he dismissed the charges against appellant on the ground that the Commonwealth’s witness had failed to appear at the time scheduled for recommencement of the trial. Thus, we hold that the Order dismissing the charges against appellant was not the functional equivalent of an acquittal, and appellant’s argument in this regard must fail. Our conclusion also resolves appellant’s second argument on appeal.

II.

Appellant’s second contention is that the trial judge had no authority to reconsider and reverse the Order dismissing the charges, pursuant to 42 Pa.Cons.Stat. § 5505, because the original order was a judgment of acquittal. Section 5505 provides as follows:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

42 Pa.Cons.Stat. § 5505. Thus, Section 5505 gives the trial judge an opportunity to review previous Orders and to either modify or rescind those rulings which are later found to be erroneous. However, Section 5505 does not empower the trial court with the authority to reverse a judgment of acquittal, however mistaken it may have been, when a second trial would be necessitated by a reversal; such a ruling would violate the double jeopardy, clause. See United States v. Scott, 436 U.S. at 92, 98 S.Ct. at 2194, 57 L.Ed.2d at 74-75. Nonetheless, since we have determined that the Order dismissing the charges against appellant was not the functional equivalent of an acquittal, it follows that it was proper for the trial judge to reconsider his original order in accordance with 42 Pa.Cons.Stat. § 5505.

III.

Appellant’s final contention is that the trial court’s declaration of a mistrial sua sponte on March 25, 1985, precludes reinstatement of the charges against him. Appellant argues that defense counsel did not request a mistrial and that there was no “manifest necessity” for the declaration of a mistrial sua sponte either on March 20 or March 25, 1985. However, we conclude that that portion of the trial court’s order of March 25, 1985 declaring a mistrial was not a sua sponte termination of the trial; it was a correction of the label attached to the relief granted on March 20, 1985 in response to the appellant’s Motion to Dismiss for failure to prosecute. Because there was no sua sponte declaration of a mistrial, the question of manifest necessity was not presented in this case regardless of the trial court’s characterization of manifest necessity for declaring the mistrial.

The law draws a distinction between a termination of the trial sua sponte by the trial court and a termination of the trial which is granted at the defendant’s request. It is clear that the declaration of a mistrial sua sponte by the trial court is proper only “for reasons of manifest necessity.” Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616 (1974); Pa.R.Crim.P. 1118; Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975). If there is any doubt as to the presence of manifest necessity to support the trial court’s declaration of a mistrial, such doubt is to be resolved in favor of the accused, and double jeopardy shall prohibit retrial. Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976). Nonetheless, as previously stated, if the defendant’s motion for a mistrial is granted, double jeopardy does not prohibit reprosecution absent governmental action intended to provoke the mistrial request. Oregon v. Kennedy, supra; United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Commonwealth v. Riffert, supra. Likewise, if the defendant moves for a dismissal of the charges prior to a final determination of guilt or innocence by the judge or the jury, double jeopardy does not bar retrial. United States v. Scott, supra; Commonwealth v. Zoller, supra.

The effect of that portion of the order of March 25, 1985, in which the trial court declared a mistrial after rescinding its previous order dismissing the charges against appellant, was to re-label and clarify the relief which it had originally granted to appellant on March 20, 1985 upon consideration of appellant’s motion to dismiss. The court recognized that it was improper to dismiss the charges at the time appellant had moved for dismissal on March 20, 1985, and that, therefore, its order of dismissal was erroneous. However, because appellant had requested the court to terminate the trial proceedings for failure to prosecute when the Commonwealth’s witnesses still had not arrived to testify at twenty-five minutes past the scheduled commencement of trial for that day, the court could, and upon reconsideration on March 25, 1985 did, treat appellant’s motion to dismiss as a timely motion for mistrial. (A motion for mistrial shall be made by a defendant when an event prejudicial to a defendant is disclosed. Pa.R.Crim.P. 1118.) The dismissal of the jury and cessation of the trial on March 20, 1985 were at the request of appellant and were not accomplished sua sponte by the court. Although the trial court initially labelled the granting of this request to appellant as an order of dismissal, on March 25, 1985, the court corrected its erroneous classification of the relief and declared it to be a mistrial.

A determination of the validity of the trial court’s assertion that there was manifest necessity for declaring a mistrial is not necessary. We have determined that the termination of the trial was not the result of a sua sponte determination of the court but was made solely in response to defendant’s request which he erroneously termed a “Motion to Dismiss”. Where, as here, a defendant requests relief in the nature of a termination of the trial prior to any evidence being offered and solely because the prosecution has delayed the commencement of its case in chief, the defendant has, in effect, requested a declaration of a mistrial regardless of how he labels his request. When a defendant requests a mistrial, the court needs no additional basis for granting the mistrial. More specifically, the court need not find manifest necessity for the mistrial. Therefore, even though the court might find that there is manifest necessity, the correctness of that finding has no bearing on the correctness of the order granting a mistrial.

In summary, appellant’s motion to dismiss was an improper motion to make at the beginning of a trial. Although the court initially granted the motion to dismiss, which had the effect of terminating the trial and dismissing the jury, it was an improper order. The court, pursuant to 42 Pa.C.S. § 5505, had the authority to reconsider its order and correct it. This the court did on March 25, 1985 when it rescinded the order to dismiss the charges, reinstated the charges, and declared that a mistrial had occurred. The reinstatement of the charges and the correction of the classification of the relief which appellant had been granted does not violate the double jeopardy clause because, although jeopardy had attached and the jury had been sworn when the trial was aborted, the termination of the trial was a result of the appellant’s request and did not involve a determination of appellant’s guilt or innocence of the crimes charged. Accordingly, appellant’s motions to dismiss the charges and/or to reverse the Order reinstating the charges were properly denied.

Order affirmed.

      . U.S. Const., Amendments V, XIV; Pa. Const. Art. I § 10. The double jeopardy clause of the Fifth Amendment to the United States Constitution was made applicable to the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . Paragraph 24 of the Commonwealth’s Motion to Reconsider Order of Court dated March 20, 1985, recites that at 9:25 a.m. the Commonwealth’s witnesses had arrived in the Commonwealth’s witness room.

      . On March 26, 1985, appellant also filed a motion to recuse the trial judge and a motion to recuse the district attorney’s office. On March 29, 1985, appellant filed a motion to continue the decision regarding recusal of the district attorney’s office. The motion to recuse the trial judge became moot because appellant’s case was reassigned to a different trial judge after the charges were reinstated. Appellant’s motion to recuse the district attorney’s office was denied on March 29, 1985. (N.T., March 28-29, 1985 at 84-85).

      . Appellant did not raise any question regarding Pa.R.Crim.P. 1117 on appeal.

      . Appellant points out that the district attorney failed to inform the trial judge that there were police officers available to testify on March 20, 1985. Appellant asserts that the district attorney’s conduct “may rise to the level of bad faith conduct” which would prohibit retrial, even if the mistrial were declared on appellant’s motion. (Appellant’s brief at 26-27.)
      Even if we were to construe appellant's motion for dismissal as a successful motion for a mistrial, we would not find that reprosecution was barred by double jeopardy. We do not approve of the district attorney’s failure to inform the trial judge that there were witnesses available to give testimony on the day the trial recommenced. Nonetheless, the record reveals no evidence that the district attorney’s omission was "intended to subvert the protection afforded by the double jeopardy clause." Oregon v. Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089, 72 L.Ed.2d at 424.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    502 A.2d 1354
    COMMONWEALTH of Pennsylvania, Appellant, v. Wayne D. ELSLAGER, and Danny Thomas Perry, Appellees.
    Superior Court of Pennsylvania.
    Submitted June 18, 1985.
    Filed Jan. 10, 1986.

      John M. Dawson, Assistant District Attorney, Meadville, for Com., appellant.
    Bruce A. Barrett, Assistant Public Defender, Meadville, for Elslager, appellee.
    Anthony Vardaro, Meadville, for Perry, appellee.
    Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

This is an appeal by the Commonwealth from the Order of the Court of Common Pleas of Crawford County (per Judge Robert L. Walker) entered December 27, 1983, granting Appellee’s, Wayne D. Elslagers’ and Danny Thomas Perrys’, Motions for New Trial and suppression of statements made by Appellees as well as suppression of the contents of a duffle bag.

Jurisdiction of this case is conferred on the Superior Court of Pennsylvania by virtue of 42 Pa.C.S.A. § 742. The Commonwealth has the right to take this appeal pursuant to Pa.R.App.P. 311(a)(5).

Wayne Elslager and Danny Perry were tried nonjury before the Honorable Robert Walker and found guilty of robbery and conspiracy to commit robbery. At trial, the Commonwealth relied upon incriminating evidence including statements each defendant gave to the police admitting their role in the robbery and statements advising the police of the location of various items used in the robbery. Each defendant had sought to have his statement and the various items seized by the police suppressed at a pre-trial hearing. The defendant’s motions were denied. After the filing of post-verdict motions, the trial judge granted the defendants a new trial and ordered the defendants’ statements and the various items located by the police as the result of the defendants’ statements suppressed.

The Commonwealth requests that this Court reverse the grant of new trial and reinstate the guilty verdicts. In support of its’ position, the Commonwealth argues that a) in the absence of new evidence, the post-trial court erroneously overruled an interlocutory suppression order of the same court in the same case, b) in the totality of the circumstances, defendants knowingly and voluntarily gave oral and written statements which were admissible and not grounds for ordering a new trial and c) given the notice requirement of 42 Pa.C.S.A. § 9712(b) the District Attorney has discretion in invoking the five year firearm enhancement provisions of the Mandatory Sentencing Act.

Initially, the Commonwealth raises an apparent procedural issue. It is argued that absent new evidence, the post-trial court erroneously overruled an interlocutory suppression order of the same court in the same case. In support of its position, the Commonwealth argues “the suppression court’s determination is to be final except in the case of evidence not earlier available.” Commonwealth v. Berkheimer, 501 Pa. 85, 91, 460 A.2d 233, 236 (1983). This is in accord with Pa.R.Crim.P. 323(j) which provides in part:

If the court determines that the evidence shall not be suppressed, such determinations shall be final, conclusive and binding at trial, except upon a showing of evidence which was theretofore unavailable ...

Furthermore, it is noted that “it is well established that absent some new evidence, it is improper for a trial judge to overrule an interlocutory order by another judge of the same court in the same case.” Commonwealth v. Eck, 272 Pa.Super. 406, 409, 416 A.2d 520, 522 (1979) (Emphasis added). Additionally, the Commonwealth directs this court to Commonwealth v. Monarch, 330 Pa.Super. 165, 479 A.2d 491 (1984) which cites Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971) as authority that “a favorable ruling at the suppression hearing relieve(d) the Commonwealth of the burden of proving a second time at trial that its evidence was constitutionally obtained(.)” Monarch, 330 Pa.Super.Ct. 175, 479 A.2d at 496.

Having set forth the applicable law, the Commonwealth notes:

In the case at bar, the record clearly shows that defendants failed to introduce any evidence, let alone new evidence sufficient to justify a reversal of the pre-trial order. (See, N.T. Trial, May 26, 1983, p. 38). In fact, testimony given by the Commonwealth’s witnesses at the suppression hearing was admitted by stipulation to the trial record. (N.T. Trial, p. 3-4). Thus, the testimony before the post-trial motion judge was identical to the testimony before the pre-trial motion judge. As noted above, existing Pennsylvania law mandates that the order of the suppression court is binding in the absence of new evidence. Because the record in this case is identical, the Commonwealth fails to see how reversal of the suppression court can possibly be justified.

Brief for Appellant at 10.

For the very reason that the Commonwealth fails to see how reversal of the suppression court can possibly be justified, this Court finds that the post-verdict motions court acted well within its authority in reversing the suppression courts order.

We begin by recognizing that the filing of post-trial motions is for the purpose of assuring the efficient operation of the judicial process and allowing the trial court the “opportunity to rectify errors and obviate the delay and expense of appellate review.” Commonwealth v. Perry, 279 Pa.Super. 32, 36, 420 A.2d 729, 731 (1980). “The function of the court en banc is to review the rulings of the suppression hearing judge and the trial judge, (citations omitted) Thus, the court en banc sits as a ‘higher’ tribunal than the trial court and serves as the initial step in the appellate review of trial proceedings.” Commonwealth v. Oakes, 481 Pa. 343, 347, 392 A.2d 1324, 1326 (1978). Citing Commonwealth v. Ware, 438 Pa. 517, 522-523, 265 A.2d 790, 793 (1970) our Supreme Court has held that “while a court en banc cannot overrule the findings of fact of the suppression judge, it can reverse on the basis of legal conclusions drawn from those facts. To allow any other result would undermine the function of the court en banc.” Commonwealth v. Youngblood, 453 Pa. 225, 228, 307 A.2d 922, 924 (1973).

As the Commonwealth has aptly pointed out, “the testimony before the post-trial motion judge was identical to the testimony before the pre-trial motion judge.” Brief for Appellant at 10. This in and of itself does not inexorably lead to the conclusion that DeMichel and Monarch foreclose the post-trial motion court from reversing the suppression court. Ware and Youngblood obviously require reversal of the suppression court when it has erred in the legal conclusions it has drawn from the facts. DeMichel is concerned with burden of proof, specifically, “a favorable ruling at the suppression hearing relieves the Commonwealth of the burden of proving a second time at trial that its evidence was constitutionally obtained ...” DeMichel, 277 A.2d at 162. Similarly, in Monarch, we were concerned with burden of proof and held:

[T]he post-trial motion court was erroneous in its belief that the Commonwealth had the burden of proving, again, at trial that the police were acting under the mantle of constitutional authority. On the contrary, it was for the defense to prove ‘by a preponderance of new evidence at trial’ the negative of such a proposition.

Monarch, 330 Pa.Superior Ct. 175, 479 A.2d at 496.

The Commonwealth’s reliance on Pa.R.Crim.P. 323(j) is likewise misplaced. Additionally, the binding nature of a determination under rule 323 “is limited to the time of ‘trial’ in its popular sense, that is, through verdict and until the case goes into the hands of the court en banc.” Commonwealth v. Bonser, 215 Pa.Super. 452, 455, 258 A.2d 675, 678 (1969).

The post-trial motion court in the case at bar was confronted with a question of law, not of fact. The facts are uncontroverted and as the Commonwealth has indicated, available to both the suppression court and the post-trial motion court.

The post-trial motion court found in part:

Officer Burk told Elslager that if he cooperated, they would not charge him with the section of the Crimes Code which required a mandatory five year sentence for crimes committed with a firearm. This promise induced Elslager to make a written statement in which he admitted to committing the robbery, acknowledging that a gun was involved. Officer Burk then interviewed Perry. He also made a written statement that he participated in the robbery and that a gun was used. Perry’s statement was taken after Officer Burk also told him that he would not be charged with a firearm violation which carried a five year mandatory penalty ...

(Opinion Sur Defendants’ Motion For A New Trial And In Arrest Of Judgment At 2.) This testimony was available and elicited at the suppression hearing. At the suppression hearing, the following dialogue took place with officer Burk:

Q. Now, did you make any promises to Elslager as part of your interview?
A. We told him that if he was cooperative.
Q. You said, we. Who is we?
A. Officer Beach was in and out. It was basically me, I told him that if he was cooperative, we wouldn’t charge him with the crimes committed with a firearm because we understand that carried a five year sentence with that charge.

(R.R. 32a)

Q. Other than your representation to him that you would indicate to the Court his cooperation which you said you do in all cases, did you make any other promises to Perry?
A. The same as I did to Elslager, that he would not be charged with crimes committed with a firearm which carries a five year penalty ...

(R.R. 34a)

In determining that the statements of the defendants should have been suppressed, the post-trial motion court held:

The defendants were given their Miranda warnings but only after the promise was made did they waive those rights and make statements confessing their participation in the crime. Such a significant promise made in relation to sentencing undercut the effect of the warnings contained in the statement of rights read to each defendant. The procurement of a confession in this manner is not voluntary. It is not a product of free and unconstrained choice. It is a product of a promise. The oral and written statements of the defendants should have been suppressed.

(Opinion Sur Defendants’ Motions For A New Trial And In Arrest Of Judgment At 6.)

With respect to the duffle bag, the post-trial motion court found:

Also subject to suppression was the duffle bag and its contents recovered by police when Elslager directed them to its location. The defendant divulged its location as part of his cooperation induced by the police promise. As a product of that promise, it is fruit of the poisoned tree, and should have been suppressed, (citation omitted).

(Opinion Sur Defendants’ Motion For A New Trial And In Arrest Of Judgment At 7.)

Clearly, the post-trial motion court had the authority to reverse the suppression judge on the basis of legal conclusions drawn from the facts. “On review, our responsibility is ‘to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.’ ” Commonwealth v. Petrino, 332 Pa.Super. 13, 24, 480 A.2d 1160, 1165 (1984); Commonwealth v. Hubble, 318 Pa.Super. 76, 464 A.2d 1236, 1237 (1983); Quoting Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975).

Given officer Burks testimony, the record supports the factual finding of the trial court that statements given by the defendants confessing their participation in the crime and revealing the location of the duffle bag and its contents was the direct result of a police promise. The promise was not to charge the defendants with the section of the Crimes Code which required a mandatory five year sentence for crimes committed with a firearm. “The Commonwealth has the burden of proof as to voluntariness; it must be shown by a preponderance of the credible evidence.” Commonwealth v. Kuhn, 327 Pa.Super. 72, 78, 475 A.2d 103, 105 (1984) citing Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). "An appellate court does not weigh evidence or pass upon the credibility of witnesses, and there is no basis for us to hold as a matter of law that the court’s finding of voluntariness of the confession was not adequately supported and well within the courts discretion.” Kuhn, 327 Pa.Superior Ct. 78-79, 475 A.2d at 106, citing Commonwealth v. Smith, 447 Pa. 457, 461, 291 A.2d 103, 104 (1972).

"(A) confession induced by a promise of immunity from a person in apparent authority to perform the promise is involuntary ... A fortiori, a waiver of rights cannot be considered voluntary where it is induced by promises of immunity from such a person.” Commonwealth v. Peters, 473 Pa. 72, 86, 373 A.2d 1055 (1977). We agree with the trial court.

The defendants were given their Miranda warnings but only after the promise was made did they waive those rights and make statements confessing their participation in the crime. Such a significant promise made in relation to sentencing undercut the effect of the warnings contained in the statement of rights read to each defendant. The procurement of a confession in this manner is not voluntary. It is not a product of free and unconstrained choice. It is a product of promise. The oral and written statements of the defendants should have been suppressed.

(Opinion Sur Defendants’ Motions For A New Trial And In Arrest Of Judgment At 6.)

As fruit of the poisoned tree, the duffle bag and its contents should have also been suppressed.

Finally, the Commonwealth argues that given the notice requirement of 42 Pa.C.S.A. § 9712(b), the District Attorney has discretion in invoking the five year mandatory sentence provisions. We need not address that issue given the facts of this case. Here, as indicated, it was the police who originally attempted to exercise discretion in invoking the five year mandatory sentence provisions. The mandatory sentencing procedure is not a matter of discretion for the police in charging an offense. “(S)ection 9712 applies only in the event the defendant is convicted of one of the offenses enumerated therein and thus relates solely to the sentencing proceedings.” Commonwealth v. Wright, 508 Pa. 25, —, 494 A.2d 354, 357 (1985). As a result, the appellees waiver of their privilege against self-incrimination was not knowingly, intelligently and voluntarily made. The statements of the appellees were therefore involuntary.

Accordingly, the order of the trial court granting the appellees a new trial and suppressing certain evidence is affirmed.

      . The Order also denied Defendant’s Motions In Arrest of Judgment, denied all other requests for suppression of evidence and vacated Defendants waiver of jury trial.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 903.

      . 42 Pa.C.S.A. § 9712(a) provides:
      Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i)(ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary. 42 Pa.C.S.A. § 9712(b) provides: Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing.

      . While we do not address today the issue of prosecutorial discretion with respect to 42 Pa.C.S.A. § 9712 we note this issue has recently been discussed in Commonwealth v. Anderson, 345 Pa.Super. 407, 411-412, 498 A.2d 887, 889 (1985).