dissenting:
I respectfully dissent. In my judgment, the holding of Commonwealth v. Roberts, 484 Pa. 500, 399 A.2d 404 (1979), has been overruled sub silentio by the Supreme Court of Pennsylvania in Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988). Consistently with McCane, I would reverse and remand for trial on charges of second degree murder, third degree murder, and voluntary manslaughter.
Richard Kemmerer was tried before a jury which found him not guilty of murder of the first degree and involuntary manslaughter but guilty of robbery and two counts of theft. The jury was unable to agree upon whether he was guilty or not guilty of murder of the second degree, murder of the third degree, and voluntary manslaughter, and with respect to these charges a mistrial was declared by the trial court. Kemmerer then filed a petition to dismiss on grounds that a second trial was barred by Pa.R.Crim.P. 1120(d). The trial court agreed and dismissed the remaining charges. The Commonwealth appealed.
Pa.R.Crim.P. 1120(d) provides as follows:
(d) If there are two or more counts in the information or indictment, the jury may report a verdict or verdicts with respect to those counts upon which it has agreed, and the judge shall receive and record all such verdicts. If the jury cannot agree with respect to all the counts *540in the information or indictment if those counts to which it has agreed operate as an acquittal of lesser or greater included offenses to which they cannot agree, these latter counts shall be dismissed. When the counts in the information or indictment upon which the jury cannot agree are not included offenses of the counts in the information or indictment upon which it has agreed, the defendant or defendants may be retried on those counts in the information or indictment, (emphasis added).
In Commonwealth v. Roberts, supra, a jury had found the defendant not guilty of first and third degree murder, voluntary manslaughter and involuntary manslaughter, but guilty of burglary and conspiracy. With respect to a charge of murder of the second degree, the jury was unable to agree upon a verdict. The trial court dismissed the second degree murder charge on the authority of Rule 1120(d), and the Supreme Court affirmed. Justice Nix (now Chief Justice), joined by Justice Larsen, wrote in strong dissent as follows:
Today’s result is totally without reasonable justification, and represents an unwarranted further extension of a doctrine (lesser included offenses) whose validity and utility in the area of homicide is seriously questionable in the first instance. If the jury had concluded that appellant was guilty of this degree of homicide yet not guilty of the “lesser” offenses of murder of the third degree and manslaughter, any possible inconsistency in the verdicts would have been ignored under our long-standing principle that inconsistent verdicts are permitted in this Commonwealth. Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675 (1975); Commonwealth v. Reed, 458 Pa. 8, 11 n. 2, 326 A.2d 356, 358 n. 2 (1974); Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971); Commonwealth v. Parrotto, 189 Pa.Super. 415, 150 A.2d 396 (1959); Commonwealth v. Kline, 107 Pa.Super. 594, 164 A. 124 (1933).
*541However, because the first jury could not agree as to this one count, although they were able to reach a conclusion on the others, and in spite of the fact that there was manifest necessity for discharging the jury when the court did, and where the motion for mistrial was agreed to by the defense, a majority of this Court now concludes that retrial is barred on the basis of a procedural rule [Pa.R.Crim.P. 1120(d)] which was never intended to accomplish such a result____
The majority specifically relies upon the [second sentence of Rule 1120(d) ] to hold that the finding of not guilty of the remaining four counts of criminal homicide bars retrial of the count charging murder of the second degree. They reached this conclusion ignoring the Comment to Rule 1120 which states:
____ (d) ____ serve[s] only to codify the procedure where conviction or acquittal of one offense operates as a bar to a later trial on a necessarily included offense, (emphasis added).
It is clear from the Comment’s reference to necessarily lesser included offenses that the purpose of the language relied upon in Rule 1120(d) was designed to avoid the successive prosecution prohibition of double jeopardy. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Where the offense in question is a necessary constituent of the greater or where the lesser offenses are necessary elements of the offense in question, so that that offense cannot be found to exist without a finding of the lesser offenses also, and the greater offense cannot properly be found to have been committed without a finding that the offense in question has been established, then it is appropriate to bar reprosecution upon an acquittal of either the lesser or the greater offense. This is all the prohibition against successive prosecution requires, in this context and this is all that the language of Rule 1120(d) intended to provide. Yet today, the majority ignores the crucial requirement of the *542Rule, i.e., that it must be a necessary constituent offense, thereby completely distorting the Rule and reaching a result which is inexplicable.
Commonwealth v. Roberts, supra, 484 Pa. at 506-508, 399 A.2d at 406-408 (Nix, J., dissenting) (footnotes omitted). Not only do I believe that Justice Nix’s opinion provided the better analysis of Rule 1120(d), but I also believe that the Supreme Court, in Commonwealth v. McCane, supra, has implicitly abandoned the approach followed by a majority of the Court in Roberts.
In Commonwealth v. McCane, supra, the defendant had been found guilty of driving while under the influence of a controlled substance, but the jury had been unable to agree upon a verdict on a charge of homicide by vehicle while driving under the influence of alcohol. After a mistrial had been declared on the latter charge, the trial court dismissed the same, holding that reprosecution on that charge was barred by Pa.R.Crim.P. 1120(d). On appeal, however, the Supreme Court reversed. With respect to Rule 1120(d), Justice Larsen, writing for the Court, said:
[T]he provisions of Rule 1120(d) do not bar the retrial of appellee on the charge of homicide by vehicle while driving under the influence following a mistrial declared on that charge because of a deadlocked jury. The comment to Rule 1120 points out that:
Sections (c), (d) and (e) serve only to codify the procedure where conviction or acquittal of one offense operates as a bar to a later trial on a necessarily included offense.
The purpose of Rule 1120(d) and specifically the language relied upon by the lower court and the appellee is to prevent “successive prosecutions” in violation of the prohibition against double jeopardy. A mistrial because a jury is unable to reach a verdict is the classic case where double jeopardy considerations do not prevent a retrial. United States v. Perez, [22 U.S.] 9 Wheat 579, 6 L.Ed. 165 (1824).
*543Commonwealth v. McCane, supra, 517 Pa. at 497, 539 A.2d at 344. See also: Commonwealth v. Vincent, 345 Pa.Super. 173, 497 A.2d 1360 (1985).
The reasoning of the Court in McCane is similar to the reasoning relied upon by the author of the dissenting opinion in Roberts. I can only conclude, therefore, that the reasoning of a majority of the Court in Roberts has now been replaced by the reasoning of the Court in McCane. Under this reasoning, Rule 1120(d) will be applied to prevent a second trial only where the offense on which the jury was unable to reach a verdict is necessarily included in the offense for which the defendant was acquitted or the offense for which the defendant was acquitted is an essential element of a greater offense on which the jury was unable to agree.
The defendant in this case was found not guilty of first degree murder, which is a willful, deliberate, premeditated killing. The jury also determined that defendant’s crime was not involuntary manslaughter. Neither of these findings necessarily excludes or is inconsistent with a potential finding that defendant is criminally liable for a killing committed during the course of robbery, or for a killing committed without a specific intent to kill. Similarly, the acquittals of first degree murder and involuntary manslaughter do not necessarily exclude a finding that defendant killed in the heat of passion or in the unreasonable belief that it was necessary to defend himself. In my judgment, therefore, the acquittals of defendant on charges of first degree murder and involuntary manslaughter do not act as a bar to a retrial of the remaining charges on which the jury was unable to agree. Pa.R.Crim.P. 1120(d) was intended only to give effect to the double jeopardy bar against successive prosecutions; and double jeopardy clearly is not implicated in a retrial of the charges of second and third degree murder and voluntary manslaughter in this case.
I would reverse and remand for trial on the charges of second and third degree murder and voluntary manslaughter.