dissenting.
I dissent. The issue which appellant raises concerning Pa.R. of Crim.P. 1115(b) involves more serious considerations than is apparent from the majority’s opinion. When a degree of guilt hearing begins, the prosecution presents witnesses who are then subject to cross-examination by the defense. After the prosecution has presented its case (or so much of its case permitting the trial judge to make a decision that murder of the first degree may be involved) the trial judge calls in two other judges if he concludes that the verdict may be murder of the first degree. After the two additional judges are brought in, the prosecution again presents its evidence and again its witnesses are subject to cross-examination by defense counsel — having the benefit of an opportunity before new fact finders, of clearing up or sharpening the testimony of prosecution witnesses which may permit them to appear in a more favorable light to the fact finders. In effect the prosecution under the Rule gets the benefit of a dress rehearsal which may enable the performance that counts to be more persuasive to the fact finders.
The majority erroneously implies that a judge must render a verdict before an individual is placed in double jeopardy. However, this Court has said that the double jeopardy clause is designed to prevent an individual from having to stand trial a second time and not merely to prevent successive conviction and punishment. Commonwealth v. Bolden, *598472 Pa. 602, 619, 373 A.2d 90, 98 (1977) (plurality opinion). Additionally, once jeopardy attaches, an individual has a “valued right to have his trial completed by a particular tribunal.” Citing Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949) in Commonwealth v. Bolden, 472 Pa. 602, 625, 373 A.2d 90, 101 (1977) (plurality opinion).
The aborting of the “first trial” and the beginning of the “second trial” is similar in effect to a mistrial which has occurred without the presence of any manifest necessity. Manifest necessity does not exist simply because our present rule provides for the existing procedure. There is no manifest necessity for our procedure. The Rule is not the only alternative to trying an accused in a murder case which might involve murder of the first degree.