concurring:
I join in the majority’s well-reasoned treatment of the merits of this case. I write simply to also concur in the majority’s implied holding that appellant did not waive the issue treated herein by raising it for the first time in a pre-trial motion to dismiss filed in conjunction with his second trial.
Appellee, the Commonwealth contends that appellant has waived his double jeopardy claim by failing to raise it prior to his being granted a new trial. It is clear from the facts recited by the majority that appellant raised his double jeopardy claim for the first time in a pre-trial motion after the court below had granted him a new trial. Although the majority does not expressly address the Commonwealth’s argument, it does consider the merits of appellant’s claim.
Therefore, the conclusion is inescapable that the majority is holding that the procedure followed by appellant does not result in waiver of a double jeopardy claim. I agree with this holding on the basis of the rationale of Justice Roberts in Commonwealth v. Hallowell, 497 Pa. 203, 439 A.2d 1140 (1981) (Opinion in Support of Reversal).
Our present practice, with which appellant has fully complied, requires a defendant to raise before retrial a claim of overreaching, and permits a pre-retrial appeal from an adverse determination. See Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). This practice provides an effective, fair and reasonable vehicle for prompt adjudication of claims of prosecutorial overreaching, assuring proper development of the record necessary to adjudicate such a claim. See e.g., Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980) (pre-retrial evidentiary hearing held pursuant to present procedure facilitated resolution of overreaching claim). Moreover, this practice assures that the issue of overreaching is ripe: the Commonwealth is seeking to retry the defendant, and the defendant is claiming that retrial will place him twice in jeopardy.
*297Id., 497 Pa. at 214, 439 A.2d at 1145.1
On this basis, I would agree with the majority’s implicit holding in this case; namely that the procedure followed by appellant does not result in waiver of a double jeopardy claim.
. Justice Roberts’ opinion was joined by two of the five other members of the Court. Justice Nix, in his Opinion in Support of Affirmance, did not comment upon the waiver issue, but did reach the merits of the case. Justices Larsen and Kauffman, in their Opinion in Support of Affirmance would have found the appellant’s double jeopardy claim to have been waived.
. 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).