Appeals from judgment of sentence of Court of Common Pleas of Dauphin County, No. 682 of 1969, in case of Commonwealth of Pennsylvania v. Thomas Frederick Culpepper.
Bruce E. Cooper, with him Richard S. Friedman, and Cooper, Friedman and Friedman, for appellant.
Marion E. MacIntyre, Deputy District Attorney, with him LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Dissenting Opinion by Jacobs, J. Wright, P. J., and Watkins, J., join in this dissenting opinion.
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On March 25, 1969, appellant together with a co-defendant, Leslie Williams, was brought to trial in Dauphin County on charges of rape and other related offenses. Appellant and his co-defendant waived their right to a jury trial, and the trial commenced before the trial judge sitting without a jury. The Commonwealth called three witnesses, including the minor prosecutrix. When the trial reconvened the following day, the trial court and counsel for the defendants engaged in the following colloquy: "The Court: Because of matters which have developed which were unknown to the Court and unanticipated by the Court when it agreed to hear this case on a waiver of a jury trial, the Court at this moment states that it now declines to further hear the case on a waiver, and will direct that the case be heard on a trial by jury hereby fixed for the first day of the June Sessions of Criminal Court, which is June 2, 1969, at which time the case will be scheduled for jury trial and at which time all persons who have already testified in this case, all persons who are scheduled to testify in this case will be present and ready to testify. "Mr. Cooper, do you wish to make any motion or objection on the record? Mr. Cooper: Just for the record, I would like to make an objection. The Court: Thank you. Mr. Dils? Mr. Dils: Yes, Your Honor. On behalf of the defendant, Leslie Williams, I would also make an objection to the Court's decision. The Court: Thank you. Motions and objections
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overruled for the reasons stated, the Court being of the opinion that a number of factual issues will require resolution, which as I said, the Court did not anticipate when it agreed to take this case on a waiver, and therefore, it is directed to be tried by a jury at the time scheduled."
Two months later, appellant was again called to trial on the original charges. Following this trial before a jury, appellant was convicted, and it is from this conviction that he now appeals.
In his brief before this Court appellant raises several substantial questions concerning alleged errors committed at his second trial.*fn1 We need not, however, reach the merits of those arguments as we believe that the appellant was placed in double jeopardy when he was called to trial after his first mistrial.
In Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971), our Supreme Court held that subjecting a defendant to trial after a mistrial places the defendant in double jeopardy unless the original mistrial was requested by the defendant under circumstances not attributable to prosecutorial or judicial overreaching, or was the result of "manifest necessity." See United States v. Jorn, 400 U.S. 471 (1971). Relying on Justice Harlan's opinion in United States v. Jorn, our Supreme Court noted in Ferguson, supra, that it would be inappropriate to create bright-line rules as to whether a mistrial should or should not be declared and stated that, ". . . in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude
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his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate." Commonwealth v. Ferguson, supra at 29, ...