dissenting:
Shall the Commonwealth hereafter be foreclosed from securing appellate review of pure questions of law where the defendant successfully seeks to avoid a full trial by challenging the sufficiency of the evidence by demurrer at the close of the Commonwealth’s case-in-chief? Does appel*320late review of such a midtrial determination invade any interest protected by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, thereby barring a Commonwealth appeal therefrom? Since I find the answer to both of these questions to be in the negative, I must respectfully dissent.
The majority opinion is clearly correct in observing that a judgment of acquittal may not be appealed and terminates the prosecution when a second trial would be necessitated by reversal. This assertion is entirely consistent with the principal objectives of the Double Jeopardy Clause, and I endorse it completely. In the instant appeal, however, we have neither a judgment of acquittal nor the clear necessity of a retrial assuming reversal.
The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution after conviction, and (3) protection against multiple punishments for the same offense. Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982). Two threshold conditions must be met in order to implicate the prohibition against multiple punishments: (1) the accused must have been placed in jeopardy and (2) there must be a threat of successive prosecutions. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). The constitutional protection afforded by the Double Jeopardy Clause against government appeals in criminal cases attaches only where there is a danger of subjecting the defendant to a second trial for the same offense. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).
Both the majority and this writer turn to United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) to ascertain the legal principles to be drawn from the federal cases reviewing the tension between the right of an appeal by the prosecutor and the prohibitions of the Double Jeopardy Clause. We reach different conclusions.
*321It is worth noting that the majority in Scott determined that “ ‘the lessons of experience’ indicate that Government appeals from midtrial dismissals requested by the defendant would significantly advance the public interest in assuring that each defendant shall be subject to a just judgment on the merits of his case____” Scott, 437 U.S. at 101, 98 S.Ct. at 2199, 57 L.Ed.2d at 80-81. There, the trial court did not grant the motion for dismissal until after the close of all the evidence, disposing of two counts of a three-count indictment. On appeal, the Sixth Circuit, relying on United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975) dismissed the government’s appeal in the belief that any further prosecution was barred by the Double Jeopardy Clause. The Supreme Court, in overruling Jenkins, held that a defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence, suffers no injury cognizable under the Double Jeopardy Clause if the government is permitted to appeal from such a trial court ruling. Scott, 437 U.S. at 98-99, 98 S.Ct. at 2198, 57 L.Ed.2d at 79.
This writer recognizes that Scott involved a motion to dismiss based upon preindictment delay which some might argue presents a clearer case of a basis unrelated to factual guilt or innocence than does the demurrer here involved. I submit, nevertheless, that the action of the trial judge on the instant appeal, in granting the demurrer, did not attempt to reach the factual issue of guilt or innocence — and the rule laid down in Scott is applicable here. I respectfully suggest that the majority misperceives the principle of law involved when it asserts, without citation to any authority, that the decision of the trial court in granting the demurrer was “factually related to guilt or innocence.” (Maj. op., at 319, cf. id. at 318).
I need not take issue with the majority’s extended explication of the rules to be applied when the Commonwealth might seek to appeal from orders granting motions for acquittal, under Pa.R.Crim.P. 1124(a)(2) and (a)(3), since that factual situation is not before us. Nor need I pause to *322consider the applicability of double jeopardy principles to attempted appeals from orders granting a post-trial motion in arrest of judgment. The plain fact is that neither the United States Supreme Court nor our own supreme court has ever held that the government is barred from taking an appeal from an order granting a demurrer where retrial has not been shown to be necessary.
To the extent that the majority’s holding in this case might be understood as implying that our own supreme court has not been reading the decisions of the Supreme Court, I must distance myself from that view. In Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1979), our supreme court reviewed, by direct appeal, the grant of a demurrer to all charges which had been entered at the conclusion of the Commonwealth’s case. Viewing the trial court action upon the demurrer as being “a de facto judgment of acquittal”, the court dismissed the appeal at 488 Pa. 173, 411 A.2d at 1195, on the rationale that it was “utterly beyond dispute that a judgment of acquittal is not appealable by the Commonwealth.” 488 Pa. at 173, 411 A.2d at 1194.
Nevertheless, the Wimberly court recognized, by way of dictum, that “[i]t is well settled that an order granting a demurrer, properly entered, is purely a question of law and is appealable by the Commonwealth.” Id. (emphasis in original) Justice O’Brien, speaking for our supreme court, cited to United States v. Scott, supra, quoting United States v. Martin Linen Supply Co., supra, for the proposition that an acquittal occurs only when the ruling of the judge actually represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged.
While the majority acknowledges that this is the legal principle to guide us in resolving this appeal and, in fact, cites to Scott, Martin Linen Supply and Wimberly for this proposition, its analysis, in my view, obliterates the distinction which has long obtained between acquittals and demurrers “properly entered.” After correctly observing that an *323order sustaining a demurrer “is a mid-trial determination that the prosecution’s evidence is legally insufficient to support a conviction” (Maj. op., at 317) (emphasis added), the majority makes a quantum leap, without citation to any authority, and concludes that “[f]or double jeopardy purposes it has precisely the same effect as a directed verdict of acquittal.” Id.
The majority goes on to compare the instant appeal with cases where the trial court actually compared the relative credibility of witnesses and cases where the trial court had entered a finding of not guilty in addition to sustaining a demurrer to the evidence. The majority then states:
For double jeopardy purposes, there is no practical distinction to be drawn between the determinations made in these cases and a determination that the evidence, when considered in the light most favorable to the Commonwealth, is so lacking in sufficiency that no rational fact finder can rest a conviction thereon. In either situation, there has been a termination of the trial on a basis related to a factual determination of guilt or innocence. In either situation, a second trial is necessary in the event of reversal. (Maj. op., at 318).
I cannot agree. I do not understand why the majority finds no distinction between the alleged legal sufficiency which is before us on this appeal and the factual determinations in the cases upon which the comparison is made. Having read the trial court’s opinion in this case, dated January 28, 1982, and having reviewed the trial transcript, I have found nothing which would lead me to conclude that the trial judge did anything more than consider the legal sufficiency of the Commonwealth’s evidence. The majority does not assist me in my search for some justification for its conclusion inasmuch as the action of the trial judge in the instant appeal is, inexplicably, not discussed in the majority opinion.
Equally disturbing is the bare assertion by the majority that a reversal of the trial court would necessitate “a second trial” and/or “further proceedings.” Clearly, there *324is nothing in the record to support a conclusion by this court that a second trial would be necessary, were we to reverse. If this court is suggesting that mere passage of time necessarily dictates that the trial be begun all over again, assuming reversal and following remand, I feel that such an assertion should properly be accompanied by whatever reasoning there may be to support such an assertion. Apart from the fact that the record does not contain any evidence that a second trial would be mandatory, a midtrial appeal does not even raise that issue. I am loathe to assume that our trial courts are unable to resolve such an issue, if and when it might properly be presented to them.
In footnote 1, (Maj. op., at 311), the majority disapproves of the trial court’s stay of the remaining charges, pending resolution of this appeal. However, absent authority against the utilization of such a procedure under the instant circumstances, I fail to understand how the majority can hold that retrial should be required on the charges where the demurrers were sustained, in light of the fact that the charges were not dismissed and where the remaining charges were stayed. It would seem that the majority is making a determination on a factual situation that is not before us, namely, where charges have been dismissed pursuant to a demurrer and trial terminated. As that factual situation is not before us, this court cannot then attempt to mold the facts by “disapproving” of a procedure in order to justify a ruling on a set of facts to which its ruling would apply.
The procedural posture of the instant case reveals that no danger of a second trial is present if the Commonwealth is permitted to appeal the instant orders. The trial court merely sustained appellees’ demurrers to the charges. No dismissal of these charges nor discharge of appellees as to these counts occurred. In fact, the remaining charges concerning the Chances R fire were stayed, pending the resolution of this appeal.
It is not the purpose of this court to speculate on what will or might occur upon the return of this case to the trial *325court, absent clear authority. We cannot and should not speculate as to what the trial judge or the parties may do in such a situation. The extent of the majority’s holding, then, is improper, in my view, as reaching issues not cognizable on this appeal.
As a matter of policy, we should restrict our rulings to the factual and procedural posture of the case as presented to the court. The instant appeal does not entail the threat of retrial because the charges appealed from were not dismissed and the remaining charges stayed. Hence, in my view, the majority’s attempt to apply double jeopardy principles to the instant facts is misplaced, as is any attempt to bootstrap such an application by implying that either the procedure in the instant case was inappropriate, or that future proceedings in this case implicate double jeopardy.
I take no position as to whether the instant appeals would be barred by double jeopardy if retrial were required. However, as retrial is not involved instantly, I cannot concede that the appeals must be quashed in light of the voluminous authority permitting Commonwealth appeals from midtrial orders sustaining demurrers, when the trial court’s ruling properly applied the test long established for such a ruling. See e.g. Commonwealth v. Wimberly, supra; Commonwealth v. Lewis, 299 Pa.Super. 367, 445 A.2d 798 (1982); Commonwealth v. Wydo, 205 Pa.Super. 62, 208 A.2d 12 (1965).
My conclusion that the appeals are not barred by double jeopardy requires me to reach the merits of the appeal.
Upon review of the record and arguments from all parties, I find ample support for the trial court’s conclusion that the evidence presented by the Commonwealth was legally insufficient to support a conviction on the charges of homicide, causing a catastrophe and voluntary manslaughter. I would therefore affirm the order of the trial court sustaining the demurrers to these charges, and remand with a procedendo.