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COMMONWEALTH v. KENNEDY (06/21/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 21, 1974.

COMMONWEALTH
v.
KENNEDY, APPELLANT

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.

COUNSEL

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.

Author: Hoffman

[ 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 to object to the discharge or move for a dismissal of the charges prior to the second trial. Appellant counters

[ 229 Pa. Super. Page 193]

    by arguing that his attorney's failure to raise the issue below constituted palpable ineffective assistance of counsel, and that he should, therefore, be entitled to raise the issue on direct appeal.

Normally, issues not raised by proper objection or motion in a trial court will not be considered for the first time on appeal. Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). This rule is especially applicable where the failure to raise an issue, even a constitutional one, may be "a deliberate choice of trial strategy." Henry v. Mississippi, 379 U.S. 443, 451 (1965); Commonwealth v. McGrogan, 449 Pa. 584, 297 A.2d 456 (1972). In most circumstances, counsel's choice of strategy is binding on the defendant. If, however, counsel's course of action is "unmotivated by any reasonable tactical choice", the defendant will not be bound and may, in a collateral proceeding, obtain relief on the basis of ineffective assistance of counsel. Commonwealth v. Cheeks, 429 Pa. 89, 97, 239 A.2d 793 (1968).

[ 229 Pa. Super. Page 194]

Although it may be possible on appeal to show ineffective assistance of counsel in failing to object [see Commonwealth v. Sullivan, 450 Pa. 273, 276-278, 299 A.2d 608 (1973)], absent clear and irrefutable proof on the record that counsel was ineffective or that his actions (or inaction) were not motivated by a reasonable tactical decision, the issue of counsel's ineffectiveness should not be reached on direct appeal. Commonwealth v. Harding, 225 Pa. Superior Ct. 84, 89, 90, 310 A.2d 326, 328, 329 (1973); Commonwealth v. Porter, 220 Pa. Superior Ct. 222, 224, 281 A.2d 701, 704 (1971) (concurring opinion). Counsel in the instant case may well have feared the possibility of an adverse verdict had the jury been required to engage in further deliberations, thus impliedly consenting to the discharge of the jury. Cf. United States v. Phillips, 431 F. 2d 949, 950-1 (3d Cir. 1970); Commonwealth ex rel. Montgomery Page 194} v. Myers, 422 Pa. 180, 189, 220 A.2d 859 (1966). If counsel made such a tactical choice in the first trial, his failure to move for a dismissal of the charges prior to the second trial may have resulted from a conclusion that a double jeopardy claim was waived by the strategic decision not to object to discharge of the first jury.

In conclusion, we do not believe that the record reflects such a clear and irrefutable case of ineffective assistance of counsel that the failure to properly raise the issue in the court below can be excused and the issue considered on direct appeal.*fn4 Although counsel's inaction may not have been motivated by tactical considerations, such a conclusion cannot be made from the trial record.

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.


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