Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1973, Nos. 649 and 653, in case of Commonwealth of Pennsylvania v. Thomas Raymond Kennedy.
Leonard Sosnov and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
James T. Ranney and David Richman, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Hoffman, J.
[ 229 Pa. Super. Page 191]
In this direct appeal from a judgment of sentence for burglary and rape, appellant contends that the second prosecution for these offenses which resulted in a conviction impermissibly placed him twice in jeopardy because his first trial was terminated before verdict without a determination of manifest necessity.
At the conclusion of the judge's charge in the first trial, the jury retired to deliberate at 11:15 a.m. The jury returned to the courtroom at 4:00 p.m. and requested further instructions. At that time, the foreman indicated that further deliberations would be fruitful. After the trial judge answered several questions, the foreman, in light of the judge's answers,*fn1 stated that he didn't think the jury would be able to reach a unanimous verdict, suggesting that one juror was dissenting. The trial judge then ordered that the jury be polled as to whether additional time was desired.
After the foreman reported that a majority of the jurors wanted to "give it another try", the trial judge ordered that a sealed verdict be taken, instructing the jury that verdicts of guilty, not guilty, or "no verdict" could be returned.*fn2 He further directed that the sealed
[ 229 Pa. Super. Page 192]
verdict must be returned before 9:00 p.m.*fn3 At approximately 6:00 p.m. the foreman gave the sealed verdict to the bailiff. On the following morning, the verdict was opened and read "no verdict". The jurors were polled and all concurred in the report. The trial judge then discharged the jury. Appellant's counsel objected to neither the ordering of a sealed verdict nor the discharge of the jury.
Subsequently, appellant was tried before a different judge and jury and found guilty of the charges. Appellant made no pretrial motions to dismiss the charges on double jeopardy grounds.
The thrust of appellant's argument is that the trial judge made no determination that the jury in the first trial was "hopelessly deadlocked" prior to discharging it, and that there was consequently no showing of manifest necessity for terminating the trial prior to verdict. See Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964). The Commonwealth argues that appellant may not now raise the issue because of appellant's failure ...