The opinion of the court was delivered by: BECKER
EDWARD R. BECKER, District Judge.
This is a petition for writ of habeas corpus. Relator, James Nick Peetros, is presently incarcerated at the State Correctional Institution at Graterford, Pa., serving a sentence of not less than fifteen, nor more than thirty years imposed by the Court of Common Pleas of Montgomery County after trial by jury in June 1970. Peetros was convicted of participating in an armed robbery of a home in Jenkintown, Pa. on April 2, 1964, during which the occupants of the house were bound and gagged and the premises successfully ransacked for a substantial quantity of jewelry and other items of value. These proceedings emanate from relator's third trial.
He has exhausted his available state remedies.
The central issue before us is whether it was consistent with the former jeopardy prohibition of the Fifth Amendment for the Commonwealth to retry relator for the third time, in view of the fact that, at the second trial, the judge declared a mistrial and dismissed the jury while the defendant was absent from the courtroom and was not consulted about the declaration.
We turn to a recitation of those facts which in due course will lead us to the conclusion that, in the circumstances of this case, the Commonwealth was not barred from reprosecution by the former jeopardy rule.
On September 24, 1969, relator's second trial was nearing a conclusion. The court had provided for a view of the scene of the crime for the morning of September 25, 1969. It was arranged that relator, who was free on bail at the time, should go to the scene by himself and there meet the court, counsel and the jury who were to be bused together from the Courthouse. On the evening of September 24, 1969, newspaper accounts of relator's prior conviction and sentence and the grant of a new trial appeared in the Norristown Times Herald and the Philadelphia Evening Bulletin.
Inter alia, the newspaper accounts recited that relator had been convicted of the robbery in 1965 and was sentenced to serve from fifteen to thirty years in the State Penitentiary. On the morning of September 25, the judge, instead of proceeding to the crime scene as planned, convened court and questioned the jurors individually to determine whether they had read the articles. Only relator was absent; during the course of these proceedings he was at the Bonwit Teller parking lot, nearby the scene of the view, awaiting the arrival of his attorney (who was to meet him there), following which the two would proceed to the scene and meet the court and jury. Relator therefore was unavailable by telephone. Counsel for both relator and the Commonwealth agreed to pursue the matter despite relator's absence.
The judge then interrogated four jurors individually; three admitted to having read the articles but denied that they would affect their ability to impartially decide the case; one juror denied seeing the articles. The court then inquired if there were any motions. Defense counsel moved for a mistrial. The Commonwealth objected, but the judge declared a mistrial.
After relator's third trial (and conviction) he moved for a new trial, arrest of judgment and for discharge on the ground of former jeopardy. His motions were argued before a court en banc, were denied, and relator was once again sentenced to imprisonment for a term of not less than fifteen nor more than thirty years. As we have noted above, relator has exhausted his state remedies; while pursuing them he has consistently (and unsuccessfully) asserted the former jeopardy claim.
The gravamen of relator's claim is that his absence from the courtroom during the mistrial proceedings and his subsequent reprosecution violated the Fifth Amendment prohibition against former jeopardy.
The theory behind the Fifth Amendment bar against retrial was succinctly set out by the Supreme Court in Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957), where the Court stated:
The prohibition is not against being twice punished, but rather against being twice placed in jeopardy. United States v. Ball, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896).
Relator contends that one of the most basic rights afforded an accused is the right "to be present in the courtroom at every stage of his trial", Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); Bustamante v. Eyman, 456 F.2d 269 (9th Cir. 1972), and that, in his absence, he lost the valued right to have his trial completed by the particular tribunal summoned to sit in judgment of him. Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963). Reprosecution after the mistrial declaration made in his absence, relator contends, violates his Fifth Amendment rights. We note at the outset of our discussion of former jeopardy that the Supreme Court has consistently declined to formulate rules based on "categories of circumstances" permitting or barring reprosecution in mistrial situations.
The United States Supreme Court long ago fashioned the standard to be used by the courts when determining whether reprosecution was barred by a plea of former jeopardy. In United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165 (1824), the Supreme Court was asked to decide whether in a capital case reprosecution was barred when the judge declared a mistrial without the consent of the prisoner where a jury was unable to agree. The Court held that under the facts, there was no bar to a future trial since the defendant ...