dissenting:
Because I believe the double jeopardy clause of the Fifth Amendment to the United States Constitution shields this defendant from an appeal of the trial court’s order adjudicating him not guilty, I must respectfully dissent.
Before this court can consider the merits of the Commonwealth’s issues, it is our duty to first address appellee Wallace’s claim that the verdict of acquittal bars the Commonwealth’s right to appeal and terminates any subsequent prosecution under the principles of double jeopardy. The Commonwealth argues, in response, that there is no acquittal or functional equivalent of an acquittal because the trial court, as factfinder, had reached the verdict without hearing any evidence.
“It has long been well-settled that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prevents the prosecution from appealing a verdict of acquittal.” Commonwealth v. Maurizio, 496 Pa. 584, 586, *52437 A.2d 1195, 1195-96 (1981). “The [prosecution] may not appeal from a verdict of ‘not guilty’ entered by the trial court in a criminal prosecution and this is so whether the prosecution be by indictment or by summary proceeding.” Borough of West Chester v. Lal, 493 Pa. 387, 392, 426 A.2d 603, 605 (1981) (quoting Commonwealth v. Ray, 448 Pa. 307, 311, 292 A.2d 410, 413 (1972)). ‘“[T]he factfinder in a criminal case has been traditionally permitted to enter an unassailable but unreasonable verdict of “not guilty”.’ ” Commonwealth v. Tillman, 501 Pa. 395, 397, 461 A.2d 795, 796 (1983) (quoting Jackson v. Virginia, 443 U.S. 307, 317 n. 10, 99 S.Ct. 2781, 2788 n. 10, 61 L.Ed.2d 560, 572 n. 10 (1979)). “This rule is such a fundamental precept of double jeopardy jurisprudence that it has been explicitly extended to situations where an acquittal is based upon an “egregiously erroneous foundation.” Borough of West Chester v. Lal, supra, 493 Pa. at 392, 426 A.2d at 605 (quoting Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43, 54 (1978)). See also Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Commonwealth v. Tillman, supra. As such, “[a] fact-finder’s verdict of not guilty is accorded absolute finality. It is completely insulated from appellate review.” Commonwealth, Department of Transportation v. Springbrook Transport, Inc., 390 Pa.Super. 308, 311, 568 A.2d 667, 669 (1990) (citations omitted).
Commonwealth v. Walczak, 440 Pa.Super. 339, 344-48, 655 A.2d 592, 595-96 (1995).1 “[T]he law attaches particular significance to an acquittal ... however mistaken the acquittal may have been.” United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978)(quoting Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957)). See also Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982)(“A verdict of not guilty, *53whether rendered by the jury or directed by the trial judge, absolutely shields the defendant from retrial.”).
This sanctification of the factfinder’s verdict, and the finality of the judgment in a criminal case, evolved from the common law pleas of autrefois acquit, autrefois convict, and pardon. Zoller, supra. The rationale underlying acceptance of these pleas as a defense was that
the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty.
Id., 507 Pa. at 351, 490 A.2d at 397 (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957)). Guided by this standard, judicial review of a trial court’s judgment would offend double jeopardy if the appeal would subject the defendant to a second trial. Zoller, 507 Pa. at 351-53, 490 A.2d at 398.
In the case presently before us, the following order was entered on the docket:
10-OCT-1995 Order of court dated 10/10/95. The defendant is adjudged not guilty of the offense of VC 5503(A) wherewith he/she stands charges upon the complainant’s failure to appear. Restitution of any fine paid is awarded but does not include the costs for filing of the appeal. Scheib, J.
The trial court entered a proper order for disposing of a case at a trial de novo.2 The order indicates an adjudication of the *54defendant’s culpability, Commonwealth v. Toner, 444 Pa.Super. 30, 663 A.2d 202 (1995), in this case, in defendant’s favor. The trial court’s verdict of acquittal is final and insulated from appellate review, no matter how erroneous its decision may have been. Tillman, supra; Borough of West Chester v. Lal, supra; Commonwealth, D.O.T. v. Springbrook, supra.
I recognize that the courts in Pennsylvania have established exceptions to the general rule that a verdict of acquittal bars appellate review and subsequent prosecution. Whether action taken by the trial court constitutes an acquittal for double jeopardy purposes may, under limited circumstances, be reviewed by this court where an erroneous verdict of not guilty was entered. See Commonwealth v. Adams, 349 Pa.Super. 200, 502 A.2d 1345 (1986)(dismissal of charges based on failure of Commonwealth’s witnesses to appear in timely fashion is not the functional equivalent of an acquittal since there has been no factual determination of guilt or innocence); Commonwealth v. Dincel, 311 Pa.Super. 470, 457 A.2d 1278 (1983)(common pleas court reviewing record on appeal by writ of certiorari, rather than sitting as factfinder at a trial de novo appeal, was not empowered to enter verdict of not guilty). It is also well-settled that “the form of the [trial] judge’s action is not controlling ... we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Commonwealth v. McDonough, 533 Pa. 283, 290, 621 A.2d 569, 573 (1993) (citations omitted).
Neither the cases cited by the parties nor any cases disclosed by independent research, provide authority for this court’s review of the trial court’s actions to determine whether an acquittal exists. Such review is not proper where the trial court “finds” the defendant not guilty on its own initiative in circumstances such as those exhibited here. Appellate review of an order of acquittal has been found not to offend double jeopardy only where the defendant himself actively seeks to avoid a trial prior to its conclusion. Zoller, 507 Pa. at 353-55, *55490 A.2d at 399 (emphasis added). In such a case, the defendant is deemed to make “a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact,” and any barrier to reprosecution is removed. Id., 507 Pa. at 353-55, 490 A.2d at 399 (quoting Scott, 437 U.S. at 93, 98 S.Ct. at 2195). See also Adams, supra (if the defendant deliberately seeks dismissal of proceedings on a basis unrelated to factual guilt or innocence, the dismissal on defendant’s motion does not prevent a government appeal or retrial).
Instantly, the trial court’s sua sponte determination was made solely in response to the Commonwealth’s implication that it was unable to proceed due to the unavailability of its necessary witness. Mindful that “[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event” of trial court error, United States v. Dinitz, 424 U.S. 600, 609, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976); Zoller, supra; Scott, supra, I find no deliberate action by Wallace which would remove the barrier to reprosecution. Zoller, supra.
I am also aware that there can be no viable double jeopardy claim unless the defendant has already been once placed in jeopardy, which in a non-jury case occurs “when the accused has been subjected to a charge and the court has begun to hear evidence.” Commonwealth v. Dasilva, 440 Pa.Super. 291, 297, 655 A.2d 568, 571 (1995) (quoting Commonwealth v. Smith, 232 Pa.Super. 546, 548-49, 334 A.2d 741, 742 (1975)).3 However, “technically ‘jeopardy1 under the Double Jeopardy Clause entails the ‘potential or risk of trial and conviction, not punishment.’ ” Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 310, 104 S.Ct. 1805, 1814, 80 L.Ed.2d 311 (1984) (quoting Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 1761, 26 L.Ed.2d 300 (1970)).
In Commonwealth v. Jung, 366 Pa.Super. 438, 531 A.2d 498 (1987), this court quashed the Commonwealth’s appeal and *56rejected its argument that there was not a trial for double jeopardy purposes because no witnesses had testified at the time the appellant was found not guilty. The Jung court concluded that the hearing of evidence had started when the prosecution made an offer of proof of its witness’ testimony and argued thereon.
In the instant case, there is no question that Wallace was subjected to the charge. The record further reveals that the Commonwealth, instead of presenting evidence from another officer who had witnessed the event in question and was present in the courtroom, represented to the court that a postponement was required because its “necessary” witness was unavailable. The Commonwealth’s representation implied to the court that it had no evidence to present without this officer’s testimony, whereupon the court acknowledged the witnesses present for the defense and found Wallace not guilty.
As the dialogue cited by the majority indicates, the Commonwealth offered the testimony of the second officer. The prosecutor continued to assert in argument to the court, however, that the absent officer was necessary to prove its case against Wallace. Judge Scheib decided the issue, ruled against admitting the offered testimony, and reaffirmed the court’s earlier decision finding Wallace not guilty. This directly involved the determination of guilt and established that the defendant was “put to trial before a trier of fact.” Jung, 366 Pa.Super. at 446, 531 A.2d at 502. Thus, the trial court’s judgment of acquittal is final and initial jeopardy had attached. See Justices of Boston Municipal Court v. Lydon, 466 U.S. at 308, 104 S.Ct. at 1814.
Further, in its opinion, the trial court states that “[biased on our understanding of the record as it existed on that day[, w]e concluded that the case could not proceed without Officer Cavanaugh’s crucial testimony. Ergo, we found the Defendant not guilty by our Order dated 10 October 1995.”4 This clearly reflects the trial, court’s intention to resolve the factual *57elements of the offense charged and, thus, results in appellant’s acquittal of the disorderly conduct charge. Cf. McDonough, 533 Pa. at 289-90, 621 A.2d at 573 (where trial court did not intend to resolve factual issues there is no resulting acquittal).
I must conclude that this court does not have the authority to entertain the Commonwealth’s appeal. Regardless of whether the court egregiously erred in entering the verdict of “not guilty,” the defendant is absolutely shielded from further retrial, Tibbs, supra, and review of the Commonwealth’s claims is precluded. Commonwealth, D.O.T v. Springbrook Transport, 390 Pa.Super. at 315, 568 A.2d at 671; Borough of West Chester v. Lal, supra. Accordingly, I would quash this appeal.
. The double jeopardy clause of the United States Constitution is applicable to the states under the Fourteenth Amendment, and affords protection co-extensive to that provided by Article I § 10 of the Pennsylvania Constitution. Commonwealth v. Zoller, 507 Pa. 344, 348 n. 1, 490 A.2d 394, 396 n. 1 (1985).
. In an appeal from a judgment of sentence entered by a district justice on a summary conviction, the court of common pleas, at the trial de novo, must determine the facts and enter a judgment on the record "as would be warranted under the law and evidence.” Commonwealth v. Gamarino, 299 Pa.Super. 144, 144-46, 445 A.2d 189, 190 (1982) (citation omitted). The judgment should be “guilty” or "not guilty;” a judgment affirming the justice of the peace, or either dismissing or affirming the appeal, is insufficient and would require reversal or *54remand for entry of a proper verdict. Toner, 444 Pa.Super. at 34-35, 663 A.2d at 204.
. It is noteworthy that the Commonwealth does not claim that jeopardy did not attach in this case.
. The trial court opinion was authored and filed by the Honorable Robert A. Doyle, rather than Judge Scheib.