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decided: March 31, 1975.


Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1972, Nos. 941 to 944, inclusive, and April T., 1972, No. 1146, in cases of Commonwealth of Pennsylvania v. John Lamont Howard, and Commonwealth of Pennsylvania v. Thomas Banks.


Stewart A. Bernstein, and Kanter, Bernstein & Miller, for appellant, at No. 363.

Barbara Bailey and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant, at No. 459.

David Richman, James J. Wilson, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee, at Nos. 363 and 459.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ., concur in the result.

Author: Van Der Voort

[ 233 Pa. Super. Page 498]

Appeal is taken to this Court by each of the above defendants, who were tried in a single jury trial on October 22 and 23, 1973, before Judge Samuel Rosenberg. Howard was found guilty of Aggravated Robbery, Aggravated Assault and Battery, and Playfully and Wantonly Pointing a Firearm. Banks was found guilty of Assault and Battery. Sentences were imposed on December 17, 1973, following which both defendants filed timely motions for new trial and in arrest of judgment. These were denied. Both Appellants have taken these direct appeals which are filed at different numbers, but which have been consolidated for our consideration.

The factual situation is quite simple. One Morris McCants testified that on December 17, 1971, he happened upon Banks, whom he knew, at a bar in Philadelphia. After exchanging a few words with Banks, McCants departed and was standing near his automobile when Banks approached with a group of men, one of whom was defendant Howard. McCants related that Howard rifled his (McCants') pockets, took money, then shot him in the stomach.

[ 233 Pa. Super. Page 499]

    ensued before Appellant stood trial on October 22 and 23, 1973. As the record shows, this argument was not raised timely in Appellant's motion for new trial.*fn2 If a party does not raise exception or objection to an issue in the trial of a case, and thereby allow the trial court to address itself to the problem and to cure possible error during the conduct of the trial, that party may not raise such objection initially on appeal. This policy is fair to the party's adversary, and is in line with the function of an appellate court, not as a court of first impression, but as one to apply law to facts properly set before it by advocates of opposing positions. Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972).

We are therefore constrained to hold, for these reasons, that Appellant is not entitled to raise it now on appeal. Whether this waiver may be overridden by an argument that one may not waive such "basic and fundamental error" as an alleged violation of a Sixth Amendment right we believe has been answered in the negative by the thorough analysis and holding of Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974), and Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Therefore, we do not meet, in this direct appeal, Appellant's arguments as to ineffectiveness of counsel and denial of right to speedy trial.

Appellant next alleges that he was placed in double jeopardy. He relies upon Appellant Banks' argument. The facts as to both being identical, and we shall address the issue immediately below as it applies to both Appellants.

[ 233 Pa. Super. Page 501]

States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.Ed.2d 43 (1971), that "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.'" (footnote and citation omitted). This valued right, of long-standing, will stand in the face of all but "absolute necessity." Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964). Realizing, as did the United States Supreme Court in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), that the vast resources of the Commonwealth do not give it any right to subject a defendant to the anxiety of repeated trials, we must also recognize that the Commonwealth is faced with an impossible situation when the jury declares that it cannot reach a conclusion. Can such an "impossible situation" be denoted as the "absolute necessity" allowing a judge's sua sponte discharge of a jury and declaration of mistrial? Any doubts as to the existence of such "absolute necessity" must be resolved in favor of the defendant. Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971). However, we believe that logic dictates that ignoring the jury's statement that no matter how much time they might be given for further deliberation they would be unable to decide would force upon the jury such a degree of coercion as to bring about an unreal and improper verdict whether it be "guilty" or "not guilty." The jury's statement that it cannot reach a decision, and a conviction by the trial judge that this is so, constitutes such "absolute necessity" as may permit a declaration of mistrial and subsequent retrial. Cf. Commonwealth v. Brooks, 225 Pa. Superior Ct. 247, 310 A.2d 338 (1973). If there is not "absolute necessity" on the instant facts, there can be no substance to the principle. The number of hours of deliberation by a jury is not the controlling factor in determining whether or not absolute necessity exists. The primary element in judging whether a jury is really

[ 233 Pa. Super. Page 503]

    deadlocked is the firmness of its communication to the Court that it is deadlocked and the judge's belief that such is the case. Of course some other factors may enter into the decision, such as the length of the trial, the hour of the day or night when the decision must be made, any extremes in the weather conditions and whether or not any of the jurors have become ill.

Appellant's second argument is that he was denied his Sixth Amendment right to speedy trial. As this issue was not raised in his motion for new trial, we deem it waived.


Judgment of sentence is affirmed as to Appellant Howard.

Judgment of sentence is affirmed as to Appellant Banks.


Judgments of sentence affirmed.

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