Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1964, Nos. 539, 540, 541, 542 and 547, in case of Commonwealth of Pennsylvania v. Sidney Brooks.
F. Emmett Fitzpatrick, Jr. and Fitzpatrick & Smith, for appellant.
James T. Ranney and Milton M. Stein, Assistant District Attorneys, and Arlen Specter, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding and Cercone, JJ. (Spaeth, J., absent.) Opinion by Hoffman, J. Cercone, J., dissents. Spaeth, J., took no part in the consideration or decision of this case.
[ 225 Pa. Super. Page 248]
The sole issue of this appeal is whether the third trial of the defendant was in violation of the double jeopardy clause of the Constitution of the United States.
[ 225 Pa. Super. Page 249]
Appellant, Sidney Brooks, was indicted on multiple charges of burglary and assault and battery. Appellant was brought to trial before the Honorable Raymond Pace Alexander and a jury on November 15, 1965. After some testimony had been taken, a mistrial was declared, over appellant's objection, on November 22, 1965, because the prosecuting attorney was ill. A second jury was impanelled and appellant was tried before the Honorable Stanley M. Greenberg on February 7, 1966. On February 16, 1966, at the close of the case, and after nine hours of inconclusive deliberation, the jury was discharged and a mistrial was declared without the acquiescence of appellant. Finally, after a third trial before the Honorable John J. McDevitt and a jury, appellant was found guilty on all charges and sentenced. A direct appeal to this Court resulted in a Per Curiam affirmance. See, Commonwealth v. Brooks, 209 Pa. Superior Ct. 761, 231 A.2d 337 (1967).
On June 23, 1969, the United States Supreme Court held that the double jeopardy clause is applicable to the states through the Fourteenth Amendment.*fn1 Benton v. Maryland, 395 U.S. 784 (1969). As a result of that decision, appellant filed a petition under the Post-Conviction Hearing Act. A hearing was held and appellant's petition was denied on November 9, 1972. This appeal followed.
Whether a re-trial is permissible under the double jeopardy clause after the jury is discharged without reaching a verdict depends on whether there was a "manifest necessity" for the act. United States v. Jorn, 400 U.S. 470 (1971); United States v. Perez, 9 Wheat. 579 (1824). As the late Justice Harlan stated in Jorn, supra at 484-485: "For the crucial difference between
[ 225 Pa. Super. Page 250]
reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant's consent, aborts the proceeding, the defendant has been deprived of his 'valued right to have his trial completed by a particular tribunal.' (Citation omitted.)"
It is irrelevant that defendant has not objected to the trial judge's action in declaring a mistrial. As our Supreme Court recently said in Commonwealth v. Shaffer et al., 447 Pa. 91, 101, 288 A.2d 727 (1972), "In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option until a scrupulous exercise of judicial discretion leads to the ...