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COMMONWEALTH v. LAURIA (03/30/72)

decided: March 30, 1972.

COMMONWEALTH
v.
LAURIA, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1969, Nos. 630 and 631, in case of Commonwealth of Pennsylvania v. James Lauria and Albin Nicholas Shimkus.

COUNSEL

Wendell G. Freeland, with him Lichtenstein and Bartiromo, for appellant.

Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Dissenting Opinion by Cercone, J.

Author: Per Curiam

[ 221 Pa. Super. Page 180]

The six judges who heard this appeal being equally divided, the judgment of sentence is affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Cercone, J.:

I respectfully dissent.

James Lauria has appealed from his conviction and sentence, after trial by jury, on charges of operating a lottery and conspiracy to do an unlawful act. He contends, inter alia, that the trial constituted double jeopardy in violation of his constitutional rights in that his prior trial on those charges had been improperly terminated by the trial judge, who, presiding without a jury, sua sponte declared a mistrial. The trial judge's reasons for declaring a mistrial were that he had heard "a great amount of evidence that would not be admissible, including the fact of a prior criminal record and additionally the Court finds there is a conflict of interest in the representation of both of the defendants by a single attorney." At the time the court declared a mistrial, it had before it defendant's demurrer to the Commonwealth's evidence.

Defendant contends the declaration of mistrial was not mandated by any "manifest necessity", the standard first adopted in ...


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