Appeal from judgment of sentence of Court of Common Pleas of Mercer County, Aug. T., 1973, No. 40, in case of Commonwealth of Pennsylvania v. Frank Bartolomucci.
Herman M. Rodgers, with him Rodgers, Marks & Perfilio, for appellant.
Robert F. Banks, First Assistant District Attorney, with him Joseph J. Nelson, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Dissenting Opinion by Van der Voort, J. Watkins, P.j., joins in this dissenting opinion.
[ 232 Pa. Super. Page 560]
The sole basis of this appeal is whether the appellant should have undergone a second trial, on a narcotics charge which resulted in his conviction,*fn1 after the jury
[ 232 Pa. Super. Page 561]
in the first trial was dismissed before reaching a verdict. The first trial, which lasted only four hours, presented a simple issue of credibility, i.e., whether to believe the undercover agent who testified that a sale was made to him by the appellant or to believe the appellant and his alibi witnesses. There was only one count and one charge for the jury to consider. The jury commenced their deliberations at 11:35 a.m. and deliberated until 8:45 p.m. taking an hour for lunch and an hour and a half for dinner. At 8:45 p.m. the Foreman instructed the tipstaff that they were not able to reach a decision. At this time the trial judge was out to dinner. At 10:10 a conference was held in the judge's chambers which was attended by the judge, the tipstaff, and counsel for the appellant and the Commonwealth. In this conference the appellant's attorney asked the tipstaff what he had said to the jury when they told him they were deadlocked. The tipstaff responded:
"When they told me they were deadlocked, I told them Judge Acker had instructed me that we would be keeping them out for a considerable amount of time, to have due consideration, and that unless they absolutely insisted, I wouldn't call him back just to have him consider that because they would be considering it anyway. In other words, they were to stay out."
At 10:46 a second conference was held in the judge's chambers. The Judge asked the tipstaff what was the latest message from the jury. The tipstaff responded:
"The buzzer rang. I went in, and the foreman said, we're hopelessly deadlocked. Please tell the Judge that we can't reach an agreement."
On this basis and over the objections of appellant's counsel, who requested further instructions to the jury as to their ability to return a verdict, the judge declared a mistrial and discharged the jury at 10:55 p.m. The ...